Limited Condition Transaction. Notwithstanding anything to the contrary herein, for purpose of (i) measuring the relevant ratios (including the Total Leverage Ratio and the LQA Recurring Revenue Leverage Ratio (in each case)) and baskets (including baskets measured as a percentage of Consolidated EBITDA or Consolidated Total Assets) with respect to the incurrence of any Indebtedness (including any Incremental Facilities) or Liens or the making of any Permitted Acquisitions or other Investments, Dividends, Restricted Debt Payments, prepayments of subordinated or junior Indebtedness, Asset Sales or other sales or dispositions of assets or fundamental changes or the designation of any Restricted Subsidiaries or Unrestricted Subsidiaries, (ii) determining compliance with representations and warranties or the occurrence of any Default or Event of Default or (iii) determining compliance with the Financial Covenants, in the case of clauses (i), (ii) and (iii), in connection with a Limited Condition Transaction, if the Borrower has made an LCT Election with respect to such Limited Condition Transaction, the date of determination of whether any such action is permitted hereunder (including, in the case of calculating Consolidated EBITDA, the reference date for determining which Test Period shall be the most recently ended Test Period for purposes of making such calculation) shall be deemed to be the date the definitive agreements for such Limited Condition Transaction are entered into (and not, for the avoidance of doubt, the date of consummation of any Limited Condition Transaction) (the “LCT Test Date”), and if, after giving pro forma effect to such Limited Condition Transaction and the other transactions to be entered into in connection therewith as if they had occurred (with respect to income statement items) at the beginning of, or (with respect to balance sheet items) on the last day of, the most recent Test Period ending prior to the LCT Test Date, the Group Members could have taken such action on the relevant LCT Test Date in compliance with such ratio, basket, representation and warranty or “Default” or “Event of Default” blocker, such ratio, basket, covenant, representation and warranty or “Default” or “Event of Default” blocker shall be deemed to have been complied with (and no Default or Event of Default shall be deemed to have arisen thereafter with respect to such Limited Condition Transaction from any such failure to comply with such ratio, basket or representation and warranty). For the avoidance of doubt, if the Borrower has made an LCT Election and any of the ratios, baskets, representations and warranties or “Default” or “Event of Default” blocker for which compliance was determined or tested as of the LCT Test Date would thereafter have failed to have been satisfied as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDA, Unrestricted Cash, Consolidated Total Funded Indebtedness or Consolidated Total Assets or otherwise, at or prior to the consummation of the relevant transaction or action, such baskets, ratios, representations and warranties or “Default” or “Event of Default” blocker will not be deemed to have failed to have been satisfied as a result of such fluctuations. If the Borrower has made an LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio or basket on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement for such Limited Condition Transaction is terminated or expires, or the date for redemption, repurchase, defeasance, satisfaction and discharge or repayment specified in an irrevocable notice for such Limited Condition Transaction expires or passes, in each case without consummation of such Limited Condition Transaction, any such ratio (other than any Financial Covenant under Section 6.08) or basket (x) shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated and (y) with respect to any Restricted Debt Payments or Dividends (and only until such time as the applicable Limited Condition Transaction has been consummated or the definitive documentation for such Limited Condition Transaction is terminated), also on a standalone basis without giving effect to such Limited Condition Transaction and the other transactions in connection therewith.
Appears in 2 contracts
Sources: Credit Agreement (Jamf Holding Corp.), Credit Agreement (Juno Topco, Inc.)
Limited Condition Transaction. Notwithstanding anything to Solely for the contrary herein, for purpose of (i) measuring the relevant ratios (including the Total Leverage Ratio and the LQA Recurring Revenue Leverage Ratio (in each case)) and baskets (including baskets including, for the avoidance of doubt, any basket measured as a percentage of Four Quarter Consolidated EBITDA or Consolidated Total Assets) and, for the avoidance of doubt including with respect to the incurrence of any Indebtedness (including any Incremental Facilities) or Liens or Loans), Liens, the making of any Permitted Acquisitions acquisitions or other Investments, Dividends, Restricted Debt Payments, prepayments prepayment of subordinated Subordinated Indebtedness or junior Indebtednessasset sales, Asset Sales in each case, in connection with a Limited Condition Transaction) or other sales or dispositions of assets or fundamental changes or the designation of any Restricted Subsidiaries or Unrestricted Subsidiaries, (ii) determining compliance with the representations and warranties or the occurrence of any Default or Event of Default or (iii) determining compliance with the Financial CovenantsDefault, in the case of clauses (i), (ii) and (iii)each case, in connection with a Limited Condition Transaction, if the Borrower has made makes an LCT Election with respect to Election, the Applicable Date of Determination in determining whether any such Limited Condition Transaction, the date of determination of whether any such action Transaction is permitted hereunder (including, in the case of calculating Consolidated EBITDA, the reference date for determining which Test Period shall be the most recently ended Test Period for purposes of making such calculation) shall be deemed to be the date the definitive agreements for such Limited Condition Transaction are entered into (and not, for the avoidance of doubt, the date of consummation of any Limited Condition Transaction) (the “LCT Test Date”), and if, after giving pro forma effect to such the Limited Condition Transaction and the other transactions to be entered into in connection therewith as if they had occurred (with respect to income statement items) at as of the beginning ofApplicable Date of Determination, or (with respect to balance sheet items) on the last day of, the most recent Test Period ending prior to the LCT Test DateDate on a Pro Forma Basis, the Group Members Borrowers could have taken such action on the relevant LCT Test Date in compliance with any such ratio, basket, representation ratio or basket (other than for the purposes of calculating actual compliance (and warranty not pro forma compliance or “Default” or “Event of Default” blockercompliance on a Pro Forma Basis) with Section 7.08), such ratio, basket, covenant, representation and warranty ratio or “Default” or “Event of Default” blocker basket shall be deemed to have been complied with (and no Default or Event of Default shall be deemed to have arisen thereafter with respect to such Limited Condition Transaction from any such failure to comply with such ratio, basket or representation and warranty). For the avoidance of doubt, if the Borrower has made an LCT Election and any of the ratios, baskets, representations and warranties or “Default” or “Event of Default” blocker for which compliance was determined or tested as of the LCT Test Date would thereafter have failed to have been satisfied as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDA, Unrestricted Cash, Consolidated Total Funded Indebtedness or Consolidated Total Assets or otherwise, at or prior to the consummation of the relevant transaction or action, such baskets, ratios, representations and warranties or “Default” or “Event of Default” blocker will not be deemed to have failed to have been satisfied as a result of such fluctuationswith. If the Borrower has made an LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio or basket on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement for such Limited Condition Transaction is terminated or expires, or the date for redemption, repurchase, defeasance, satisfaction and discharge or repayment specified in an irrevocable notice for such Limited Condition Transaction expires or passes, in each case without consummation of such Limited Condition Transaction, any such ratio (other than any Financial Covenant under Section 6.08) or basket (x) shall be calculated and tested on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions pro forma events in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated and (y) with respect to any Restricted Debt Payments or Dividends (and only until such time as the applicable Limited Condition Transaction has been consummated actually closed or the definitive documentation for such agreement with respect thereto has been terminated; provided that the consummation of any Limited Condition Transaction is terminated)shall be subject to the absence of any Specified Event of Default. For the avoidance of doubt, also if the Borrower has made an LCT Election and any of the ratios or baskets for which compliance was determined or tested as of LCT Test Date (including with respect to the incurrence of any Indebtedness) are not satisfied as a result of fluctuations in any such ratio or basket (including due to fluctuations in Consolidated EBITDA calculated on a standalone basis without giving effect to such Pro Forma Basis, including the target of any Limited Condition Transaction and Transaction) at or prior to the other transactions in connection therewithconsummation of the relevant transaction or action, such baskets or ratios will not be deemed to have been unsatisfied as a result of such fluctuations; however, if any ratios or baskets improve as a result of such fluctuations, such improved baskets or ratios may be utilized.
Appears in 2 contracts
Sources: Credit Agreement (Instructure Holdings, Inc.), Credit Agreement (Instructure Holdings, Inc.)
Limited Condition Transaction. (a) Notwithstanding anything to the contrary hereinherein (including in connection with any calculation made on a Pro Forma Basis), for purpose to the extent that the terms of this Agreement require (i) measuring the relevant ratios compliance with any financial ratio or test (including the Total any Consolidated Leverage Ratio and the LQA Recurring Revenue test, any Consolidated Secured Leverage Ratio (in each case)and/or any First Lien Leverage Ratio test) and baskets (including baskets measured and/or any cap expressed as a percentage of Consolidated EBITDA or Consolidated Total Assets) with respect to the incurrence of any Indebtedness (including any Incremental Facilities) Assets or Liens or the making of any Permitted Acquisitions or other Investments, Dividends, Restricted Debt Payments, prepayments of subordinated or junior Indebtedness, Asset Sales or other sales or dispositions of assets or fundamental changes or the designation of any Restricted Subsidiaries or Unrestricted Subsidiaries, (ii) determining compliance with representations and warranties or the occurrence absence of any a Default or Event of Default (or any type of Default or Event of Default) as a condition to (iiiA) determining compliance with the Financial Covenants, in the case consummation of clauses (i), (ii) and (iii), any transaction in connection with a any Limited Condition Transaction, if at the election of the Borrower has (the “LCT Election”), the determination of whether the relevant condition is satisfied may be made an at the time (the “LCT Election Test Time”) of (or on the basis of the financial statements for the most recently ended Reference Period at the time of) the execution of the definitive agreement with respect to such Limited Condition Transaction, the date of determination of whether any such action is permitted hereunder (including, in the case of calculating Consolidated EBITDA, the reference date for determining which Test Period shall be the most recently ended Test Period for purposes of making such calculation) shall be deemed to be the date the definitive agreements for such Limited Condition Transaction are entered into (and not, for the avoidance of doubt, the date of consummation of any Limited Condition Transaction) (the “LCT Test Date”), and if, after giving pro forma effect to such Limited Condition Transaction and the other transactions to be entered into in connection therewith as if they had occurred (with respect to income statement items) at the beginning of, or (with respect to balance sheet items) on the last day of, the most recent Test Period ending prior to the LCT Test Date, the Group Members could have taken such action on the relevant LCT Test Date in compliance with such ratio, basket, representation and warranty or “Default” or “Event of Default” blocker, such ratio, basket, covenant, representation and warranty or “Default” or “Event of Default” blocker shall be deemed to have been complied with (and no Default or Event of Default shall be deemed to have arisen thereafter with respect to such Limited Condition Transaction from any such failure to comply with such ratio, basket or representation and warranty). For the avoidance of doubt, if the Borrower has made an LCT Election and any of the ratios, baskets, representations and warranties or “Default” or “Event of Default” blocker for which compliance was determined or tested as of the LCT Test Date would thereafter have failed to have been satisfied as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDA, Unrestricted Cash, Consolidated Total Funded Indebtedness or Consolidated Total Assets or otherwise, at or prior to the consummation of the relevant transaction or action, such baskets, ratios, representations and warranties or “Default” or “Event of Default” blocker will not be deemed to have failed to have been satisfied as a result of such fluctuations. If the Borrower has made an LCT Election for any Limited Condition TransactionElection, then in connection with any subsequent calculation of any financial ratio or basket on or availability following the relevant such LCT Test Date Time and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement for such Limited Condition Transaction with respect thereto is terminated or expires, or the date for redemption, repurchase, defeasance, satisfaction and discharge or repayment specified in an irrevocable notice for such Limited Condition Transaction expires or passes, in each case without consummation of such Limited Condition Transactionterminated, any such financial ratio (other than or test and/or any Financial Covenant under Section 6.08) or basket (x) cap shall be calculated (and tested), as applicable, on a Pro Forma Basis both (1) assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness indebtedness and the use of proceeds thereof) have been consummated and (y2) with respect to any Restricted Debt Payments or Dividends (and only until such time as the applicable Limited Condition Transaction has been consummated or the definitive documentation for such Limited Condition Transaction is terminated), also on a standalone basis without giving effect to assuming such Limited Condition Transaction and the other transactions in connection therewiththerewith (including any incurrence of indebtedness and the use of proceeds thereof) have not been consummated.
(b) Any financial ratios required to be satisfied in order for a specific action to be permitted under this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one decimal place more than the number of decimal places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding up if there is no nearest number).
(c) Notwithstanding anything to the contrary herein, but subject to this Section 1.04, all financial ratios and tests (including the Consolidated Leverage Ratio, the Consolidated Secured Leverage Ratio, the First Lien Leverage Ratio, the Consolidated Interest Coverage Ratio and the amount of Consolidated Total Assets and Consolidated EBITDA) contained in this Agreement that are calculated with respect to any Reference Period during which any Subject Transaction occurs shall be calculated with respect to such Reference Period and such Subject Transaction on a Pro Forma Basis. Further, if since the beginning of any such Reference Period and on or prior to the date of any required calculation of any financial ratio or test (x) any Subject Transaction has occurred or (y) any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Borrower or any Restricted Subsidiary since the beginning of such Reference Period has consummated any Subject Transaction, then, in each case, any applicable financial ratio or test shall be calculated on a Pro Forma Basis for such Reference Period as if such Subject Transaction had occurred at the beginning of the applicable Reference Period (or, in the case of Consolidated Total Assets (or with respect to any determination pertaining to the balance sheet, including the acquisition of cash and Cash Equivalents), as of the last day of such Reference Period).
(d) For purposes of determining the permissibility of any action, change, transaction or event that requires a calculation of any financial ratio or test (including any First Lien Leverage Ratio test, any Consolidated Leverage Ratio test, any Consolidated Interest Coverage Ratio test and/or the amount of Consolidated EBITDA or Consolidated Total Assets), such financial ratio or test shall be calculated at the time (subject to clause (a) above) such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be, and no Default or Event of Default shall be deemed to have occurred solely as a result of a change in such financial ratio or test occurring after the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be.
Appears in 2 contracts
Sources: Credit Agreement (HMS Holdings Corp), Credit Agreement (HMS Holdings Corp)
Limited Condition Transaction. Notwithstanding anything to the contrary herein, for purpose of (i) measuring the relevant ratios (including the Total Leverage Ratio and the LQA Recurring Revenue Leverage Ratio (in each case)) and baskets (including baskets measured as a percentage of Consolidated EBITDA or Consolidated Total Assets) with respect to the incurrence of any Indebtedness (including any Incremental Facilities) or Liens or the making of any Permitted Acquisitions or other Investments, Dividends, Restricted Debt Payments, prepayments of subordinated or junior Indebtedness, Asset Sales or other sales or dispositions of assets or fundamental changes or the designation of any Restricted Subsidiaries or Unrestricted Subsidiaries, (ii) determining compliance with representations and warranties or the occurrence of any Default or Event of Default or (iii) determining compliance with the Financial Covenants, in the case of clauses (i), (ii) and (iii), in connection with a Limited Condition Transaction, if the Borrower has made an LCT Election with respect to such Limited Condition Transaction, the date of determination of whether any such action is permitted hereunder (including, in the case of calculating Consolidated EBITDA, the reference date for determining which Test Period shall be the most recently ended Test Period for purposes of making such calculation) shall be deemed to be the date the definitive agreements for such Limited Condition Transaction are entered into (and not, for the avoidance of doubt, the date of consummation of any Limited Condition Transaction) (the “LCT Test Date”), and if, after giving pro forma effect to such Limited Condition Transaction and the other transactions to be entered into in connection therewith as if they had occurred (with respect to income statement items) at the beginning of, or (with respect to balance sheet items) on the last day of, the most recent Test Period ending prior to the LCT Test Date, the Group Members could have taken such action on the relevant LCT Test Date in compliance with such ratio, basket, representation and warranty or “Default” or “Event of Default” blocker, such ratio, basket, covenant, representation and warranty or “Default” or “Event of Default” blocker shall be deemed to have been complied with (and no Default or Event of Default shall be deemed to have arisen thereafter with respect to such Limited Condition Transaction from any such failure to comply with such ratio, basket or representation and warranty). For the avoidance of doubt, if the Borrower has made an LCT Election and any of the ratios, baskets, representations and warranties or “Default” or “Event of Default” blocker for which compliance was determined or tested as of the LCT Test Date would thereafter have failed to have been satisfied as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDA, Unrestricted Cash, Consolidated Total Funded Indebtedness or Consolidated Total Assets or otherwise, at or prior to the consummation of the relevant transaction or action, such baskets, ratios, representations and warranties or “Default” or “Event of Default” blocker will not be deemed to have failed to have been satisfied as a result of such fluctuations. If the Borrower has made an LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio or basket on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement for such Limited Condition Transaction is terminated or expires, or the date for redemption, repurchase, defeasance, satisfaction and discharge or repayment specified in an irrevocable notice for such Limited Condition Transaction expires or passes, in each case without consummation of such Limited Condition Transaction, any such ratio (other than any Financial Covenant under Section 6.08) or basket (x) shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated and (y) with respect to any Restricted Debt Payments or Dividends (and only until such time as the applicable Limited Condition Transaction has been consummated or the definitive documentation for such Limited Condition Transaction is terminated), also on a standalone basis without giving effect to such Limited Condition Transaction and the other transactions in connection therewith.under
Appears in 2 contracts
Sources: Amendment Agreement (Jamf Holding Corp.), Amendment Agreement (Juno Topco, Inc.)
Limited Condition Transaction. Notwithstanding anything in this Agreement or any Loan Document to the contrary herein, for purpose of when (i) measuring the relevant ratios (including the Total Leverage Ratio and the LQA Recurring Revenue Leverage Ratio (calculating any applicable ratio or financial test in each case)) and baskets (including baskets measured as a percentage of Consolidated EBITDA or Consolidated Total Assets) connection with respect to the incurrence of any Indebtedness (including any Incremental Facilities) or Liens or Indebtedness, the creation of Liens, the making of any Permitted Acquisitions or other InvestmentsDisposition, Dividendsthe making of an Investment, the making of a Restricted Debt PaymentsPayment, prepayments of subordinated or junior Indebtedness, Asset Sales or other sales or dispositions of assets or fundamental changes or the designation of any Restricted Subsidiaries a Subsidiary as restricted or Unrestricted Subsidiariesunrestricted or the repayment of Indebtedness (each, a “Specified Transaction”), (ii) determining compliance the accuracy of any representation or warranty (other than in connection with representations and warranties an Incremental Limited Condition Term Facility) or the occurrence of (iii) determining whether any Default or Event of Default has occurred, is continuing or would result from any action (iii) determining compliance other than in connection with the Financial Covenantsan Incremental Limited Condition Term Facility), in the each case of clauses (i), (ii) and through (iii), ) in connection with a Limited Condition Transaction, if the Borrower has made an LCT Election with respect to such Limited Condition Transaction, the date of determination of such ratio or financial test, the accuracy of such representation or warranty (but taking into account any earlier date specified therein) or whether any Default or Event of Default has occurred, is continuing or would result therefrom shall, at the option of the Borrower (the Borrower’s election to exercise such action is permitted hereunder (includingoption in connection with any Limited Condition Acquisition, in the case of calculating Consolidated EBITDAan “LCT Election”), the reference date for determining which Test Period shall be the most recently ended Test Period for purposes of making such calculation) shall be deemed to be the date the definitive agreements for such Limited Condition Transaction are entered into (and not, for the avoidance of doubt, the date of consummation of any Limited Condition Transaction) (the “LCT Test Date”), and if, . If on a Pro Forma Basis after giving pro forma effect to such Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) such ratios, financial tests, representations and warranties and absence of defaults are calculated as if they such Limited Condition Transaction or other transactions had occurred (with respect to income statement items) at the beginning of, or (with respect to balance sheet items) on the last day of, of the most recent Test Reference Period ending prior to the LCT Test DateDate for which financial statements are available, the Group Members Borrower could have taken such action on the relevant LCT Test Date in compliance with such ratio, basket, representation and warranty the applicable ratios or “Default” or “Event of Default” blockerother provisions, such ratio, basket, covenant, representation and warranty or “Default” or “Event of Default” blocker provisions shall be deemed to have been complied with (and no Default or Event of Default shall be deemed to have arisen thereafter with respect to such Limited Condition Transaction from any such failure to comply with such ratio, basket or representation and warranty)with. For the avoidance of doubt, (i) if the Borrower has made an LCT Election and any of the such ratios, basketsfinancial tests, representations and warranties or “Default” absence of defaults are exceeded or “Event of Default” blocker for which compliance was determined or tested as of the LCT Test Date would thereafter have failed to have been satisfied breached as a result of fluctuations in any such ratio or basket, (including due to fluctuations in Consolidated EBITDA), Unrestricted Cash, Consolidated Total Funded Indebtedness a change in facts and circumstances or Consolidated Total Assets or otherwise, other provisions at or prior to the consummation of the relevant transaction or actionLimited Condition Transaction, such baskets, ratios, representations and warranties or “Default” or “Event and absence of Default” blocker defaults will not be deemed to have been exceeded, breached, or otherwise failed to have been satisfied as a result of such fluctuationsfluctuations or changed circumstances solely for purposes of determining whether the Limited Condition Transaction and any related transactions is permitted hereunder and (ii) such ratios and compliance with such conditions shall not be tested at the time of consummation of such Limited Condition Transaction or related Specified Transactions. If the Borrower has made an LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio or basket availability with respect to any subsequent acquisition or Investment that the Borrower or a Restricted Subsidiary is contractually committed to consummate on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement for such Limited Condition Transaction is terminated or expires, or the date for redemption, repurchase, defeasance, satisfaction and discharge or repayment specified in an irrevocable notice for such Limited Condition Transaction expires or passes, in each case without consummation of such Limited Condition Transaction, any such ratio (other than any Financial Covenant under Section 6.08) or basket (x) shall be calculated on a Pro Forma Basis both (i) assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated and (yii) with respect to any Restricted Debt Payments or Dividends (and only until such time as the applicable Limited Condition Transaction has been consummated or the definitive documentation for such Limited Condition Transaction is terminated), also on a standalone basis without giving effect to assuming such Limited Condition Transaction and the other transactions in connection therewiththerewith (including any incurrence of Indebtedness and the use of proceeds thereof) have not been consummated .
Appears in 1 contract
Limited Condition Transaction. Notwithstanding anything to the contrary hereinin this Agreement, for purpose purposes of (i) measuring determining compliance with any provision of this Agreement (other than Section 6.1 and Section 6.3) that requires the relevant ratios (including the Total Leverage Ratio and the LQA Recurring Revenue Leverage Ratio (in each case)) and baskets (including baskets measured as a percentage of Consolidated EBITDA or Consolidated Total Assets) with respect to the incurrence calculation of any Indebtedness (including any Incremental Facilities) or Liens or the making of any Permitted Acquisitions or other Investments, Dividends, Restricted Debt Payments, prepayments of subordinated or junior Indebtedness, Asset Sales or other sales or dispositions of assets or fundamental changes or the designation of any Restricted Subsidiaries or Unrestricted Subsidiariesapplicable financial ratio, (ii) determining compliance with representations and warranties representations, warranties, defaults or events of default (other than Events of Default under Section 8.1(a), (b), (g) or (h), none of which shall exist on the LCT Test Date or the occurrence date of consummation of any Default or Event of Default Limited Condition Transaction) or (iii) determining compliance with the Financial Covenantstesting availability under baskets set forth herein (including, in each case with respect to the case incurrence of clauses (iIndebtedness incurred in connection therewith), (ii) and (iii)in each case, in connection with a Limited Condition Transaction, if Transaction by the Borrower has made an LCT Election and its Restricted Subsidiaries or any other transaction or action permitted hereunder that is consummated in connection with a Limited Condition Transaction (other than for purposes of borrowing Revolving Loans and Incremental Term Facilities, each of which shall remain subject to the terms and conditions thereof with respect to such the impact, if any, of any Limited Condition Transaction), at the irrevocable option of the Borrower (the Borrower’s election to exercise such option in connection with DB1/ 110470318.9 53 any Limited Condition Transaction, an “LCT Election”), the date of determination of whether any such action Limited Condition Transaction is permitted hereunder (includinghereunder, in the case of calculating Consolidated EBITDA, the reference date for determining which Test Period shall be the most recently ended Test Period for purposes of making such calculation) shall be deemed to be the date the definitive agreements for such Limited Condition Transaction are entered into (and not, for the avoidance of doubt, the date of consummation of any Limited Condition Transaction) (the “LCT Test Date”), and if, after giving pro forma effect to such the Limited Condition Transaction and the other transactions to be entered into in connection therewith as if they had occurred (with respect to income statement items) at the beginning of, or (with respect to balance sheet items) on the last day of, of the most recent Test Period ending prior to the LCT Test Date, the Group Members Borrower could have taken such action on the relevant LCT Test Date in compliance with such ratio, ratio or basket, representation and warranty such ratio or “Default” or “Event of Default” blocker, such ratio, basket, covenant, representation and warranty or “Default” or “Event of Default” blocker basket shall be deemed to have been complied with (and no Default or Event of Default shall be deemed to have arisen thereafter with respect to for such Limited Condition Transaction from any such failure Transaction; provided that, no LCT Test Date may occur more than 90 days prior to comply with such ratio, basket or representation and warranty)the consummation of the applicable Acquisition. For the avoidance of doubt, if the Borrower has made an LCT Election and any of the ratios, baskets, representations and warranties ratios or “Default” or “Event of Default” blocker baskets for which compliance was determined or tested as of the LCT Test Date would thereafter have failed to have been satisfied are exceeded as a result of fluctuations in any such ratio or basket, basket (including due to fluctuations in Consolidated EBITDA, Unrestricted Cash, Consolidated Total Funded Indebtedness or Consolidated Total Assets or otherwise, of the target of any Limited Condition Transaction) at or prior to the consummation of the relevant transaction or action, such baskets, ratios, representations and warranties baskets or “Default” or “Event of Default” blocker ratios will not be deemed to have failed to have been satisfied exceeded as a result of such fluctuations. If the Borrower has made an LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio or basket (other than maintenance testing of the financial covenants in Article VI) on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement for such Limited Condition Transaction is terminated or expires, or the date for redemption, repurchase, defeasance, satisfaction and discharge or repayment specified in an irrevocable notice for such Limited Condition Transaction expires or passes, in each case without consummation of such Limited Condition Transaction, any such ratio (other than any Financial Covenant under Section 6.08) or basket shall be (x) shall be calculated on a Pro Forma Basis pro forma basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of debt and the use of proceeds thereof) have been consummated and (y) also calculated (and tested) on a pro forma basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have not been consummated and consummated; provided that (y) other than solely with respect to any Restricted Debt Payments or Dividends (and only until such time as the applicable Limited Condition Transaction has been consummated or the definitive documentation for incurrence test under which such Limited Condition Transaction is terminatedbeing made and the test set forth in the immediately preceding clause (x)) Consolidated EBITDA, also on a standalone basis without giving effect to assets and Consolidated Net Income of any target of such Limited Condition Transaction can only be used in the determination of the relevant ratio and the other transactions in connection therewithbaskets if and when such Limited Condition Transaction has closed.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Amneal Pharmaceuticals, Inc.)
Limited Condition Transaction. Notwithstanding anything to Solely for the contrary herein, for purpose of (i) measuring the relevant ratios (including the Total Leverage Ratio and the LQA Recurring Revenue Leverage Ratio (in each case)) and baskets (including baskets including, for the avoidance of doubt, any basket measured as a percentage of Four Quarter Consolidated EBITDA or Consolidated Total Assets) and, for the avoidance of doubt including with respect to the incurrence of any Indebtedness (including any Incremental Facilities) or Liens or Loans), Liens, the making of any Permitted Acquisitions acquisitions or other Investments, Dividends, Restricted Debt Payments, prepayments prepayment of subordinated Subordinated Indebtedness or junior Indebtednessasset sales, Asset Sales in each case, in connection with a Limited Condition Transaction) or other sales or dispositions of assets or fundamental changes or the designation of any Restricted Subsidiaries or Unrestricted Subsidiaries, (ii) determining compliance with the representations and warranties or the occurrence of any Default or Event of Default or (iii) determining compliance with the Financial CovenantsDefault, in the case of clauses (i), (ii) and (iii)each case, in connection with a Limited Condition Transaction, if the Borrower has made makes an LCT Election with respect to Election, the Applicable Date of Determination in determining whether any such Limited Condition Transaction, the date of determination of whether any such action Transaction is permitted hereunder (including, in the case of calculating Consolidated EBITDA, the reference date for determining which Test Period shall be the most recently ended Test Period for purposes of making such calculation) shall be deemed to be the date the definitive agreements for such Limited Condition Transaction are entered into (and not, for the avoidance of doubt, the date of consummation of any Limited Condition Transaction) (the “LCT Test Date”), and if, after giving pro forma effect to such the Limited Condition Transaction and the other transactions to be entered into in connection therewith as if they had occurred (with respect to income statement items) at as of the beginning ofApplicable Date of Determination, or (with respect to balance sheet items) on the last day of, the most recent Test Period ending prior to the LCT Test DateDate on a Pro Forma Basis, the Group Members Borrowers could have taken such action on the relevant LCT Test Date in compliance with any such ratio, basket, representation ratio or basket (other than for the purposes of calculating actual compliance (and warranty not pro forma compliance or “Default” or “Event of Default” blockercompliance on a Pro Forma Basis) with Section 7.08), such ratio, basket, covenant, representation and warranty ratio or “Default” or “Event of Default” blocker basket shall be deemed to have been complied with (and no Default or Event of Default shall be deemed to have arisen thereafter with respect to such Limited Condition Transaction from any such failure to comply with such ratio, basket or representation and warranty). For the avoidance of doubt, if the Borrower has made an LCT Election and any of the ratios, baskets, representations and warranties or “Default” or “Event of Default” blocker for which compliance was determined or tested as of the LCT Test Date would thereafter have failed to have been satisfied as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDA, Unrestricted Cash, Consolidated Total Funded Indebtedness or Consolidated Total Assets or otherwise, at or prior to the consummation of the relevant transaction or action, such baskets, ratios, representations and warranties or “Default” or “Event of Default” blocker will not be deemed to have failed to have been satisfied as a result of such fluctuationswith. If the Borrower has made an LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio or basket on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement for such Limited Condition Transaction is terminated or expires, or the date for redemption, repurchase, defeasance, satisfaction and discharge or repayment specified in an irrevocable notice for such Limited Condition Transaction expires or passes, in each case without consummation of such Limited Condition Transaction, any such ratio (other than any Financial Covenant under Section 6.08) or basket (x) shall be calculated and tested on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions pro forma events in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated and (y) with respect to any Restricted Debt Payments or Dividends (and only until such time as the applicable Limited Condition Transaction has been consummated actually closed or the definitive documentation for such agreement with respect thereto has been terminated; provided that the consummation of any Limited Condition Transaction is terminated)shall be subject to the absence of any Specified Event of Default. For the avoidance of doubt, also if the Borrower has made an LCT Election and any of the ratios or baskets for which compliance was determined or tested as of LCT Test Date (including with respect to the incurrence of any Indebtedness) are not satisfied as a result of fluctuations in any such ratio or basket (including due to fluctuations in Consolidated EBITDA calculated on a standalone basis without giving effect to such Pro Forma Basis, including the target of any Limited Condition Transaction and Transaction) at or prior to the other transactions in connection therewithconsummation 117 of the relevant transaction or action, such baskets or ratios will not be deemed to have been unsatisfied as a result of such fluctuations; however, if any ratios or baskets improve as a result of such fluctuations, such improved baskets or ratios may be utilized.
Appears in 1 contract
Limited Condition Transaction. Notwithstanding anything in this Agreement or any First Lien Loan Document to the contrary hereincontrary, for purpose when (a) calculating any applicable ratio, the amount or availability of (i) measuring the relevant ratios (including the Total Leverage Ratio and the LQA Recurring Revenue Leverage Ratio (in each case)) and baskets (including baskets measured as a percentage of Available Amount or any other basket based on Consolidated EBITDA or Consolidated Total Assets) total assets, or determining other compliance with respect to the incurrence of any Indebtedness (including any Incremental Facilities) or Liens or the making of any Permitted Acquisitions or other Investments, Dividends, Restricted Debt Payments, prepayments of subordinated or junior Indebtedness, Asset Sales or other sales or dispositions of assets or fundamental changes or the designation of any Restricted Subsidiaries or Unrestricted Subsidiariesthis Agreement, (iib) determining compliance with representations and warranties or the occurrence any provision of any this Agreement which requires that no Default or Event of Default has occurred, is continuing or would result therefrom), (iiic) determining compliance with any provision of this Agreement which requires compliance with any representations and warranties set forth herein or (d) the Financial Covenantssatisfaction of all other conditions precedent to the incurrence of Indebtedness, the creation of Liens, the making of any disposition, the making of an Investment, the making of a Restricted Payment, the designation of a Subsidiary as restricted or unrestricted or the repayment of Indebtedness, in the each case of clauses (i), (ii) and (iii), in connection with a Limited Condition Transaction, if the Borrower has made an LCT Election with respect to such Limited Condition Transaction, the date of determination of such ratio or other provisions, determination of whether any Default or Event of Default has occurred, is continuing or would result therefrom, determination of compliance with any representations or warranties or the satisfaction of any other conditions shall, at the option of the Borrower (the Borrower’s election to exercise such action is permitted hereunder (includingoption in connection with any Limited Condition Transaction, in the case of calculating Consolidated EBITDAan “LCT Election”), the reference date for determining which Test Period shall be the most recently ended Test Period for purposes of making such calculation) shall be deemed to be the date the definitive agreements for such Limited Condition Transaction are entered into (and not, for the avoidance of doubt, the date of consummation of any Limited Condition Transaction) (the “LCT Test Date”), and if, . If on a pro forma basis after giving pro forma effect to such Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) such ratios and other provisions are calculated as if they such Limited Condition Transaction or other transactions had occurred (with respect to income statement items) at the beginning of, or (with respect to balance sheet items) on the last day of, of the most recent Test Period ending prior to the LCT Test DateDate for which financial statements of the Borrower have been delivered pursuant to Section 5.01(a) or (b), as applicable, the Group Members Borrower could have taken such action on the relevant LCT Test Date in compliance with such ratio, basket, representation and warranty the applicable ratios or “Default” or “Event of Default” blockerother provisions, such ratio, basket, covenant, representation and warranty or “Default” or “Event of Default” blocker provisions shall be deemed to have been complied with (and no Default or Event of Default shall be deemed to have arisen thereafter with respect to such Limited Condition Transaction from any such failure to comply with such ratio, basket or representation and warranty)with. For the avoidance of doubt, (i) if the Borrower has made an LCT Election and any of the ratios, baskets, representations and warranties such ratios or “Default” other provisions are exceeded or “Event of Default” blocker for which compliance was determined or tested as of the LCT Test Date would thereafter have failed to have been satisfied breached as a result of fluctuations in any such ratio or basket, (including due to fluctuations in Consolidated EBITDA, Unrestricted Cash, Consolidated Total Funded Indebtedness EBITDA or Consolidated Total Assets other components of such ratio) or otherwise, other provisions at or prior to the consummation of the relevant transaction or actionLimited Condition Transaction, such baskets, ratios, representations ratios and warranties or “Default” or “Event of Default” blocker other provisions will not be deemed to have failed to have been satisfied exceeded as a result of such fluctuations. If fluctuations solely for purposes of determining whether the Borrower has made an LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio or basket on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or permitted hereunder and (ii) such ratios and compliance with such conditions shall not be tested at the date that the definitive agreement for such Limited Condition Transaction is terminated or expires, or the date for redemption, repurchase, defeasance, satisfaction and discharge or repayment specified in an irrevocable notice for such Limited Condition Transaction expires or passes, in each case without time of consummation of such Limited Condition Transaction. Notwithstanding anything in this Agreement or any First Lien Loan Document to the contrary, any such ratio (other than any Financial Covenant under Section 6.08) if the Borrower or basket the Restricted Subsidiaries (x) shall be calculated on incurs Indebtedness, creates Liens, makes asset sales, makes Investments, makes Restricted Payments, designates any Subsidiary as restricted or unrestricted or repays any Indebtedness in connection with any Limited Condition Transaction under a Pro Forma Basis assuming ratio-based Basket and (y) incurs Indebtedness, creates Liens, makes asset sales, Investments or Restricted Payments, designates any Subsidiary as restricted or unrestricted or repays any Indebtedness in connection with such Limited Condition Transaction and other transactions under a non-ratio-based Basket (which shall occur within five Business Days of the events in connection therewith clause (including any incurrence of Indebtedness and x) above), then the use of proceeds thereof) have been consummated and (y) applicable ratio will be calculated with respect to any Restricted Debt Payments or Dividends (and only until such time as action under the applicable Limited Condition Transaction has been consummated or the definitive documentation for ratio-based Basket without regard to any such action under such non-ratio-based basket made in connection with such Limited Condition Transaction is terminated), also on a standalone basis without giving effect to such Limited Condition Transaction and the other transactions in connection therewithTransaction.
Appears in 1 contract
Sources: First Lien Credit Agreement (Brigham Minerals, Inc.)
Limited Condition Transaction. Notwithstanding anything in this Agreement or any Loan Document to the contrary herein, for purpose of when (i) measuring the relevant ratios (including the Total Leverage Ratio and the LQA Recurring Revenue Leverage Ratio (calculating any applicable ratio or financial test in each case)) and baskets (including baskets measured as a percentage of Consolidated EBITDA or Consolidated Total Assets) connection with respect to the incurrence of any Indebtedness (including any Incremental Facilities) or Liens or Indebtedness, the creation of Liens, the making of any Permitted Acquisitions or other InvestmentsDisposition, Dividendsthe making of an Investment, the making of a Restricted Debt PaymentsPayment, prepayments of subordinated or junior Indebtedness, Asset Sales or other sales or dispositions of assets or fundamental changes or the designation of any Restricted Subsidiaries a Subsidiary as restricted or Unrestricted Subsidiariesunrestricted or the repayment of Indebtedness (each, a “Specified Transaction”), (ii) determining compliance the accuracy of any representation or warranty (other than in connection with representations and warranties an Incremental Limited Condition Term Facility) or the occurrence of (iii) determining whether any Default or Event of Default has occurred, is continuing or would result from any action (iii) determining compliance other than in connection with the Financial Covenantsan Incremental Limited Condition Term Facility), in the each case of clauses (i), (ii) and through (iii), ) in connection with a Limited Condition Transaction, if the Borrower has made an LCT Election with respect to such Limited Condition Transaction, the date of determination of such ratio or financial test, the accuracy of such representation or warranty (but taking into account any earlier date specified therein) or whether any Default or Event of Default has occurred, is continuing or would result therefrom shall, at the option of the Borrower (the Borrower’s election to exercise such action is permitted hereunder (includingoption in connection with any Limited Condition Acquisition, in the case of calculating Consolidated EBITDAan “LCT Election”), the reference date for determining which Test Period shall be the most recently ended Test Period for purposes of making such calculation) shall be deemed to be the date the definitive agreements for such Limited Condition Transaction are entered into (and not, for the avoidance of doubt, the date of consummation of any Limited Condition Transaction) (the “LCT Test Date”), and if, . If on a Pro Forma Basis after giving pro forma effect to such Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness, Liens, Restricted Payments or other transactions and the use of proceeds thereof) such ratios, financial tests, representations and warranties and absence of defaults are calculated as if they such Limited Condition Transaction or other transactions had occurred (with respect to income statement items) at the beginning of, or (with respect to balance sheet items) on the last day of, of the most recent Test Reference Period ending prior to the LCT Test DateDate for which financial statements are available, the Group Members Borrower could have taken such action on the relevant LCT Test Date in compliance with such ratio, basket, representation and warranty the applicable ratios or “Default” or “Event of Default” blockerother provisions, such ratio, basket, covenant, representation and warranty or “Default” or “Event of Default” blocker provisions shall be deemed to have been complied with (and no Default or Event of Default shall be deemed to have arisen thereafter with respect to such Limited Condition Transaction from any such failure to comply with such ratio, basket or representation and warranty)with. For the avoidance of doubt, (i) if the Borrower has made an LCT Election and any of the such ratios, basketsfinancial tests, representations and warranties or “Default” absence of defaults are exceeded or “Event of Default” blocker for which compliance was determined or tested as of the LCT Test Date would thereafter have failed to have been satisfied breached as a result of fluctuations in any such ratio or basket, financial test (including due to fluctuations in Consolidated EBITDA), Unrestricted Cash, Consolidated Total Funded Indebtedness a change in facts or Consolidated Total Assets circumstances or otherwise, other provisions at or prior to the consummation of the relevant transaction or actionLimited Condition Transaction, such basketsratios, ratiosfinancial tests, representations and warranties or “Default” or “Event and absence of Default” blocker defaults will not be deemed to have been exceeded, breached, or otherwise failed to have been satisfied as a result of such fluctuations. If fluctuations or changed circumstances solely for purposes of determining whether the Borrower has made an LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio or basket on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction and any related transactions is consummated or permitted hereunder and (ii) such ratios, financial tests and compliance with such conditions shall not be tested at the date that the definitive agreement for such Limited Condition Transaction is terminated or expires, or the date for redemption, repurchase, defeasance, satisfaction and discharge or repayment specified in an irrevocable notice for such Limited Condition Transaction expires or passes, in each case without time of consummation of such Limited Condition Transaction, any such ratio (other than any Financial Covenant under Section 6.08) or basket (x) shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated and (y) with respect to any Restricted Debt Payments or Dividends (and only until such time as the applicable Limited Condition Transaction has been consummated or the definitive documentation for such Limited Condition Transaction is terminated), also on a standalone basis without giving effect to such Limited Condition Transaction and the other transactions in connection therewith.38 509265-2041-Active.31278172.28
Appears in 1 contract
Limited Condition Transaction. Notwithstanding anything to the contrary herein, for purpose purposes of (i) measuring the relevant ratios and the component amounts thereof (including the First Lien Leverage Ratio, the Senior Secured Leverage Ratio, the Total Leverage Ratio Ratio, the Consolidated Interest Coverage Ratio, Consolidated EBITDA and the LQA Recurring Revenue Leverage Ratio amount of cash and Cash Equivalents (in each case)including for the purpose of any “netting” calculation on any LCT Test Date) and the Consolidated Interest Expense) and baskets (including baskets measured as a percentage of Consolidated EBITDA or Consolidated Total Assets) with respect to the incurrence of any Indebtedness (including any Incremental FacilitiesFacilities and Permitted Incremental Equivalent Debt) or Liens or the making of any Permitted Acquisitions or other Investments, Dividends, Restricted Debt Payments, prepayments of subordinated or junior Indebtedness, Asset Sales or other sales or dispositions of assets or fundamental changes or the designation of any Restricted Subsidiaries or Unrestricted Subsidiaries, or (ii) determining compliance with representations and warranties or the occurrence of any Default or Event of Default or (iii) determining compliance with the Financial CovenantsDefault, in the case of clauses (i), (ii) and (iiiii), in connection with a Limited Condition Transaction, if the Borrower has Borrowers have made an LCT Election with respect to such Limited Condition Transaction, the date of determination of whether any such action is permitted hereunder (including, in the case of calculating Consolidated EBITDA, the reference date for determining which Test Period shall be the most recently ended Test Period for purposes of making such calculation) shall be deemed to be either (a) the date the definitive agreements agreement(s) for such Limited Condition Transaction are entered into or (b) solely in connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers (the “City Code”) or similar law or practices in other jurisdictions apply, the date on which a “Rule 2.7 announcement” of a firm intention to make an offer or similar announcement or determination in another jurisdiction subject to laws similar to the City Code in respect of such target company made in compliance with the City Code or similar law or practices in other jurisdictions (a “Public Offer”) (the “LCT Test Date”) (and not, for the avoidance of doubt, the date of consummation of any such Limited Condition Transaction) (the “LCT Test Date”), and if, after giving pro forma effect to such Limited Condition Transaction and the other transactions to be entered into in connection therewith as if they had occurred (with respect to income statement items) at the beginning of, or (with respect to balance sheet items) on the last day of, the most recent Test Period ending prior to the LCT Test Date, the Group Members could have taken such action on the relevant LCT Test Date in compliance with such ratio, basket, representation and warranty warranty, or “Default” Default or “Event of DefaultDefault “blocker” blocker, such ratio, basket, covenant, or representation and warranty or “Default” Default or “Event of DefaultDefault “blocker” blocker shall be deemed to have been complied with (and no Default or Event of Default shall be deemed to have arisen thereafter with respect to such Limited Condition Transaction from any such failure to comply with such ratio, basket basket, covenant, or representation and warranty). For the avoidance of doubt, if the Borrower has Borrowers have made an LCT Election and any of the ratios, baskets, covenants, Default or Event of Default “blockers” or representations and warranties or “Default” or “Event of Default” blocker for which compliance was determined or tested as of the LCT Test Date would thereafter have failed to have been satisfied as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDA, Unrestricted Cash, Consolidated Total Funded Indebtedness or Consolidated Total Assets or otherwise, at or prior to the consummation of the relevant transaction or action, such baskets, ratios, covenants, Default or Event of Default “blockers” or representations and warranties or “Default” or “Event of Default” blocker will not be deemed to have failed to have been satisfied as a result of such fluctuationsfluctuations or otherwise. If the Borrower Agent has made an LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio or basket on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement or Public Offer for such Limited Condition Transaction is terminated or expires, or the date for redemption, repurchase, defeasance, satisfaction and discharge or repayment specified in an irrevocable notice for such Limited Condition Transaction expires or passes, in each case without consummation of such Limited Condition Transaction, any such ratio (other than any Financial Covenant under Section 6.08) or basket (x) shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated and (y) with consummated. Notwithstanding the foregoing provisions of this paragraph or any other provision of this Agreement, any unfunded Commitments outstanding at any time in respect of any individual Incremental Facility pursuant to any Restricted Debt Payments or Dividends (and only until such time as the applicable Section 2.20 established to finance a Limited Condition Transaction has been consummated may be terminated only by the lenders holding more than 50% of the aggregate amount of the Commitments in respect of such Incremental Facility (or by the definitive documentation for Administrative Agent acting at the request of such Limited Condition Transaction is terminatedlenders), also on a standalone basis without giving effect to such Limited Condition Transaction and not, for the avoidance of doubt, automatically or by the Required Lenders or any other transactions in connection therewithLenders (or by the Administrative Agent acting at the request of the Required Lenders or any other Lenders).
Appears in 1 contract
Limited Condition Transaction. Notwithstanding anything to Solely for the contrary herein, for purpose of (i) measuring the relevant ratios (including the Total Leverage Ratio and the LQA Recurring Revenue Leverage Ratio (in each case)) and baskets (including baskets including, for the avoidance of doubt, any basket measured as a percentage of Four Quarter Consolidated EBITDA or Consolidated Total Assets) and, for the avoidance of doubt including with respect to the incurrence of any Indebtedness (including any Incremental Credit Facilities) or Liens or ), Liens, the making of any Permitted Acquisitions acquisitions or other Investments, Dividendsprepayment of Subordinated Indebtedness or asset sales, Restricted Debt Paymentsin each case, prepayments of subordinated in connection with a Limited Condition Transaction) or junior Indebtedness, Asset Sales or other sales or dispositions of assets or fundamental changes or the designation of any Restricted Subsidiaries or Unrestricted Subsidiaries, (ii) determining compliance with the representations and warranties or the occurrence of any Default or Event of Default or (iii) determining compliance with the Financial CovenantsDefault, in the case of clauses (i), (ii) and (iii)each case, in connection with a Limited Condition Transaction, if the Borrower has made makes an LCT Election with respect to Election, the applicable date of determination in determining whether any such Limited Condition Transaction, the date of determination of whether any such action Transaction is permitted hereunder (including, in the case of calculating Consolidated EBITDA, the reference date for determining which Test Period shall be the most recently ended Test Period for purposes of making such calculation) shall be deemed to be the date the definitive agreements for such Limited Condition Transaction are entered into (and not, for the avoidance of doubt, the date of consummation of any Limited Condition Transaction) (the “LCT Test Date”), and if, after giving pro forma effect to such the Limited Condition Transaction and the other transactions to be entered into in connection therewith as if they had occurred (with respect to income statement items) at the beginning ofas of such applicable date of determination, or (with respect to balance sheet items) on the last day of, the most recent Test Period ending prior to the LCT Test DateDate on a Pro Forma Basis, the Group Members Borrower could have taken such action on the relevant LCT Test Date in compliance with any such ratio, basket, representation ratio or basket (other than for the purposes of calculating actual compliance (and warranty not pro forma compliance or “Default” or “Event of Default” blockercompliance on a Pro Forma Basis) with Section 7.08), such ratio, basket, covenant, representation and warranty ratio or “Default” or “Event of Default” blocker basket shall be deemed to have been complied with (and no Default or Event of Default shall be deemed to have arisen thereafter with respect to such Limited Condition Transaction from any such failure to comply with such ratio, basket or representation and warranty). For the avoidance of doubt, if the Borrower has made an LCT Election and any of the ratios, baskets, representations and warranties or “Default” or “Event of Default” blocker for which compliance was determined or tested as of the LCT Test Date would thereafter have failed to have been satisfied as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDA, Unrestricted Cash, Consolidated Total Funded Indebtedness or Consolidated Total Assets or otherwise, at or prior to the consummation of the relevant transaction or action, such baskets, ratios, representations and warranties or “Default” or “Event of Default” blocker will not be deemed to have failed to have been satisfied as a result of such fluctuationswith. If the Borrower has made an LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio or basket on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement for such Limited Condition Transaction is terminated or expires, or the date for redemption, repurchase, defeasance, satisfaction and discharge or repayment specified in an irrevocable notice for such Limited Condition Transaction expires or passes, in each case without consummation of such Limited Condition Transaction, any such ratio (other than any Financial Covenant under Section 6.08) or basket (x) shall be calculated and tested on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions pro forma events in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated and (y) with respect to any Restricted Debt Payments or Dividends (and only until such time as the applicable Limited Condition Transaction has been consummated actually closed or the definitive documentation for such agreement with respect thereto has been terminated; provided that the consummation of any Limited Condition Transaction is terminated)shall be subject to the absence of any Specified Event of Default. For the avoidance of doubt, also if the Borrower has made an LCT Election and any of the ratios or baskets for which compliance was determined or tested as of the LCT Test Date (including with respect to the incurrence of any Indebtedness) are not satisfied as a result of fluctuations in any such ratio or basket (including due to fluctuations in Consolidated EBITDA calculated on a standalone basis without giving effect to such Pro Forma Basis, including the target of any Limited Condition Transaction and Transaction) at or prior to the other transactions in connection therewithconsummation of the relevant transaction or action, such baskets or ratios will not be deemed to have been unsatisfied as a result of such fluctuations; however, if any ratios or baskets improve as a result of such fluctuations, such improved baskets or ratios may be utilized.
Appears in 1 contract
Sources: Credit Agreement (CarGurus, Inc.)
Limited Condition Transaction. Notwithstanding anything to the contrary herein, for purpose For purposes of (i) measuring determining compliance with any provision of this Agreement which requires the relevant ratios (including calculation of the Interest Coverage Ratio, the Total Net Leverage Ratio and Ratio, the LQA Recurring Revenue Leverage Ratio (in each case)) and baskets (including baskets measured as a percentage of Consolidated EBITDA or Consolidated Total Assets) with respect to the incurrence of any Indebtedness (including any Incremental Facilities) or Liens Assets or the making of any Permitted Acquisitions or other Investments, Dividends, Restricted Debt Payments, prepayments of subordinated or junior Indebtedness, Asset Sales or other sales or dispositions of assets or fundamental changes or the designation of any Restricted Subsidiaries or Unrestricted SubsidiariesConsolidated Fixed Charge Coverage Ratio, (ii) determining compliance with representations and warranties or the occurrence of any Default or Event of Default or (iii) determining compliance with the Financial Covenantsother than, in the case of clauses (i)an acquisition or other similar Investment, certain customary “specified representations” or, at the option of the Administrative Borrower, European “certain funds” representations) or absence of Defaults or Events of Default, (iiiii) and testing availability under baskets set forth in this Agreement (iii)including baskets measured as a percentage of Consolidated Total Assets or Consolidated EBITDA) or (iv) satisfying the Payment Conditions, in each case, in connection with a Limited Condition TransactionTransaction (and each transaction entered into connection therewith, if including, without limitation, the incurrence of any Indebtedness, or the issuance of any shares of Disqualified Stock, the incurrence of any Liens or the making of Investments, Dividends, prepayments of Junior Debt, asset sales, transfers and dispositions, fundamental changes or the designation of any Restricted Subsidiary or Unrestricted Subsidiary), at the option of the Administrative Borrower has made an LCT Election (the Administrative Borrower’s election to exercise such option in connection with respect to such any Limited Condition Transaction, an “LCT Election”), the date of determination of whether any such action is permitted hereunder (including, in the case of calculating Consolidated EBITDA, the reference date for determining which Test Period shall be the most recently ended Test Period for purposes of making such calculation) shall be deemed to be (A) in the case of any acquisition or other similar Investment (including with respect to any Indebtedness to be incurred in connection therewith), either, at the Administrative Borrower’s option (x) as of the date the definitive agreements for such Limited Condition Transaction acquisition or other similar Investment are entered into into, (and not, for y) at the avoidance time that binding commitments to provide any Indebtedness to be incurred in connection therewith are provided or at the time such Indebtedness is incurred or (z) at the time of doubt, the date of consummation of the relevant acquisition or other similar Investment, (B) in the case of any Limited Condition TransactionDividends (including with respect to any Indebtedness to be incurred in connection therewith), either, at the Administrative Borrower’s option, (x) at the time of the declaration of such Dividend, (y) at the time that binding commitments to provide any Indebtedness to be incurred in connection therewith are provided or are the time such Indebtedness is incurred or (z) at the time of the making of such Dividend, and (C) in the case of any irrevocable repayment, repurchase or redemption of Indebtedness (including with respect to any Indebtedness to be incurred in connection therewith), either, at the option of the Administrative Borrower (x) at the time of delivery of notice with respect to such repayment, repurchase or redemption, (y) at the time that binding commitments to provide any Indebtedness to be incurred in connection therewith are provided or at the time such Indebtedness is incurred or (z) at the time of the making of such repayment, repurchase or redemption (each such time described in clauses (A) through (C), the “LCT Test Date”), in each case, after giving effect to the relevant transaction, any related Indebtedness (including the intended use of proceeds thereof), and all other permitted pro forma adjustments on a pro forma basis, and if, after giving pro forma effect to such the Limited Condition Transaction and the other transactions to be entered into in connection therewith as if they had occurred (with respect to income statement items) at the beginning of, or (with respect to balance sheet items) on the last day of, of the most recent Test Period ending prior to the LCT Test Date, the Group Members Borrowers or other Restricted Subsidiaries could have taken such action on the relevant LCT Test Date in compliance with such ratio, basketrepresentation, representation and warranty warranty, absence of Defaults or “Default” or “Event Events of Default” blocker, basket or Payment Condition, such ratio, basketrepresentation, covenantwarranty, representation and warranty absence of Defaults or “Default” or “Event Events of Default” blocker , basket or Payment Condition shall be deemed to have been complied with, provided, that the determination of or testing of clauses (a)(i)(a) and (a)(ii) of a Payment Condition on an LCT Test Date in connection with (and no Default or Event of Default shall be deemed to have arisen thereafter with respect to such a Limited Condition Transaction from any such failure to comply with such ratio, basket or representation and warranty). For the avoidance of doubt, if the Borrower has made an LCT Election and any of the ratios, baskets, representations and warranties or “Default” or “Event of Default” blocker for which compliance was determined or tested as of the LCT Test Date would thereafter have failed to have been satisfied as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDA, Unrestricted Cash, Consolidated Total Funded Indebtedness or Consolidated Total Assets or otherwise, at or prior shall only be permitted to the consummation of the relevant transaction or action, such baskets, ratios, representations and warranties or “Default” or “Event of Default” blocker will not be deemed to have failed to have been satisfied as a result of such fluctuations. If the Borrower has made an LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio or basket on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which extent such Limited Condition Transaction is consummated or within ninety (ii90) the date that the definitive agreement for such Limited Condition Transaction is terminated or expires, or the date for redemption, repurchase, defeasance, satisfaction and discharge or repayment specified in an irrevocable notice for such Limited Condition Transaction expires or passes, in each case without consummation days of such Limited Condition Transaction, any such ratio (other than any Financial Covenant under Section 6.08) or basket (x) shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated and (y) with respect to any Restricted Debt Payments or Dividends (and only until such time as the applicable Limited Condition Transaction has been consummated or the definitive documentation for such Limited Condition Transaction is terminated), also on a standalone basis without giving effect to such Limited Condition Transaction and the other transactions in connection therewithLCT Test Date.
Appears in 1 contract
Sources: Abl Credit Agreement (WillScot Mobile Mini Holdings Corp.)
Limited Condition Transaction. Notwithstanding anything to the contrary hereinin this Agreement, for purpose purposes of (i) measuring determining compliance with any provision of this Agreement (other than Section 6.1 and Section 6.3) that requires the relevant ratios (including the Total Leverage Ratio and the LQA Recurring Revenue Leverage Ratio (in each case)) and baskets (including baskets measured as a percentage of Consolidated EBITDA or Consolidated Total Assets) with respect to the incurrence calculation of any Indebtedness (including any Incremental Facilities) or Liens or the making of any Permitted Acquisitions or other Investments, Dividends, Restricted Debt Payments, prepayments of subordinated or junior Indebtedness, Asset Sales or other sales or dispositions of assets or fundamental changes or the designation of any Restricted Subsidiaries or Unrestricted Subsidiariesapplicable financial ratio, (ii) determining compliance with representations and warranties representations, warranties, defaults or events of default (other than Events of Default under Section 8.1(a), (b), (g) or (h), none of which shall exist on the LCT Test Date or the occurrence date of consummation of any Default or Event of Default Limited Condition Transaction) or (iii) determining compliance with the Financial Covenantstesting availability under baskets set forth herein (including, in each case with respect to the case incurrence of clauses (iIndebtedness incurred in connection therewith), (ii) and (iii)in each case, in connection with a Limited Condition Transaction, if Transaction by the Borrower has made an LCT Election and its Restricted Subsidiaries or any other transaction or action permitted hereunder that is consummated in connection with a Limited Condition Transaction (other than for purposes of borrowing Revolving Loans and Incremental Term Facilities, each of which shall remain subject to the terms and conditions thereof with respect to such the impact, if any, of any Limited Condition Transaction), at the irrevocable option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), the date of determination of whether any such action Limited Condition Transaction is permitted hereunder (includinghereunder, in the case of calculating Consolidated EBITDA, the reference date for determining which Test Period shall be the most recently ended Test Period for purposes of making such calculation) shall be deemed to be the date the definitive agreements for such Limited Condition Transaction are entered into (and not, for the avoidance of doubt, the date of consummation of any Limited Condition Transaction) (the “LCT Test Date”), and if, after giving pro forma effect to such the Limited Condition Transaction and the other transactions to be entered into in connection therewith as if they had occurred (with respect to income statement items) at the beginning of, or (with respect to balance sheet items) on the last day of, of the most recent Test Period ending prior to the LCT Test Date, the Group Members Borrower could have taken such action on the relevant LCT Test Date in compliance with such ratio, ratio or basket, representation and warranty such ratio or “Default” or “Event of Default” blocker, such ratio, basket, covenant, representation and warranty or “Default” or “Event of Default” blocker basket shall be deemed to have been complied with (and no Default or Event of Default shall be deemed to have arisen thereafter with respect to for such Limited Condition Transaction from any such failure Transaction; provided that, no LCT Test Date may occur more than 90 days prior to comply with such ratio, basket or representation and warranty)the consummation of the applicable Acquisition. For the avoidance of doubt, if the Borrower has made an LCT Election and any of the ratios, baskets, representations and warranties ratios or “Default” or “Event of Default” blocker baskets for which compliance was determined or tested as of the LCT Test Date would thereafter have failed to have been satisfied are exceeded as a result of fluctuations in any such ratio or basket, basket (including due to fluctuations in Consolidated EBITDA, Unrestricted Cash, Consolidated Total Funded Indebtedness or Consolidated Total Assets or otherwise, of the target of any Limited Condition Transaction) at or prior to the consummation of the relevant transaction or action, such baskets, ratios, representations and warranties baskets or “Default” or “Event of Default” blocker ratios will not be deemed to have failed to have been satisfied exceeded as a result of such fluctuations. If the Borrower has made an LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio or basket (other than maintenance testing of the financial covenants in Article VI) on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement for such Limited Condition Transaction is terminated or expires, or the date for redemption, repurchase, defeasance, satisfaction and discharge or repayment specified in an irrevocable notice for such Limited Condition Transaction expires or passes, in each case without consummation of such Limited Condition Transaction, any such ratio (other than any Financial Covenant under Section 6.08) or basket shall be (x) shall be calculated on a Pro Forma Basis pro forma basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of debt and the use of proceeds thereof) have been consummated and (y) also calculated (and tested) on a pro forma basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have not been consummated and consummated; provided that (y) other than solely with respect to the incurrence test under which such Limited Condition DB1/ 110470318.9 54 Transaction is being made and the test set forth in the immediately preceding clause (x)) Consolidated EBITDA, assets and Consolidated Net Income of any Restricted Debt Payments or Dividends (target of such Limited Condition Transaction can only be used in the determination of the relevant ratio and only until baskets if and when such time as the applicable Limited Condition Transaction has been consummated or the definitive documentation for such Limited Condition Transaction is terminated), also on a standalone basis without giving effect to such Limited Condition Transaction and the other transactions in connection therewithclosed.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Amneal Pharmaceuticals, Inc.)
Limited Condition Transaction. Notwithstanding anything to In the contrary herein, for purpose case of (i) measuring the relevant ratios (including the Total Leverage Ratio and the LQA Recurring Revenue Leverage Ratio (in each case)) and baskets (including baskets measured as a percentage of Consolidated EBITDA or Consolidated Total Assets) with respect to the incurrence or assumption of any Indebtedness (including any Incremental Facilities) indebtedness or Liens liens or the making of any Permitted Acquisitions or other Investmentsinvestments, Dividends, Restricted Debt Payments, prepayments of subordinated or junior Indebtedness, Asset Sales or other sales or dispositions of assets restricted payments or fundamental changes changes, the repayment of any indebtedness for which an irrevocable notice of prepayment or redemption is required or the designation of any Restricted Subsidiaries restricted subsidiaries or Unrestricted Subsidiaries, (ii) determining compliance with representations and warranties or the occurrence of any Default or Event of Default or (iii) determining compliance with the Financial Covenantsunrestricted subsidiaries, in the case of clauses (i), (ii) and (iii)each case, in connection with a permitted acquisition or similar permitted investment the consummation of which is not conditioned on the availability of, or obtaining, third party financing (a “Limited Condition Transaction”), if at the Borrower has made an LCT Election with respect to such Limited Condition TransactionCompany’s option, the date of determination of whether any such action is permitted hereunder (including, in the case of calculating Consolidated EBITDA, the reference date for determining which Test Period relevant ratios and baskets shall be the most recently ended Test Period for purposes determined as of making such calculation) shall be deemed to be the date either (a) the definitive acquisition agreements for such Limited Condition Transaction are entered into or prepayment or redemption notices are made, as applicable (and notnot at the time of consummation of such Limited Condition Transaction), for or (b) solely in connection with an acquisition to which the avoidance of doubtUnited Kingdom City Code on Takeovers and Mergers applies (or similar law or practice in other jurisdictions), the date on which a “Rule 2.7 announcement” of a firm intention to make an offer or similar announcement or determination in another jurisdiction subject to laws similar to the United Kingdom City Code on Takeovers and Mergers (a “Public Offer”) in respect of a target of a Limited Condition Transaction and, in each case, calculated as if the Limited Condition Transaction and other pro forma events in connection therewith were consummated on such date; provided, that if the Company has made such an election, in connection with determining whether the calculation of any ratio or basket with respect to the incurrence of any debt or liens, or the making of any investments, restricted payments, prepayments of subordinated debt, asset sales, fundamental changes or the designation of a restricted subsidiary or unrestricted subsidiary, in each case, in connection with such Limited Condition Transaction is permitted on or following such date and prior to the earlier of the date on which such Limited Condition Transaction is consummated or the definitive agreement or notice for, or, as applicable, the Public Offer for, such acquisition is terminated or expires without the consummation of such acquisition, any Limited Condition Transaction) (the “LCT Test Date”), and if, after giving such ratio or basket shall be calculated on a pro forma effect to basis assuming such Limited Condition Transaction and the other transactions to be entered into pro forma events in connection therewith (including any incurrence of indebtedness) have been consummated as if they had occurred (with respect to income statement items) at the beginning of, or (with respect to balance sheet items) on of the last day of, the most recent Test Period ending prior to the LCT Test Date, the Group Members could have taken such action on the relevant LCT Test Date in compliance with such ratio, basket, representation and warranty or “Default” or “Event of Default” blocker, such ratio, basket, covenant, representation and warranty or “Default” or “Event of Default” blocker shall be deemed to have been complied with (and no Default or Event of Default shall be deemed to have arisen thereafter with respect to such Limited Condition Transaction from any such failure to comply with such ratio, basket or representation and warranty)applicable test period. For the avoidance of doubt, if the Borrower has made an LCT Election and any of the ratios, baskets, representations and warranties or “Default” or “Event of Default” blocker for which compliance was determined or tested as of the LCT Test Date would thereafter have failed to have been satisfied such ratios are exceeded as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDA, Unrestricted Cash, Consolidated Total Funded Indebtedness EBITDA of the Company or Consolidated Total Assets the person subject to such acquisition or otherwiseinvestment, at or prior to the consummation of the relevant transaction or action, such baskets, ratios, representations and warranties or “Default” or “Event of Default” blocker ratios will not be deemed to have failed been exceeded as a result of such fluctuations solely for purposes of determining whether the relevant transaction or action is permitted to have been satisfied be consummated or taken; provided, that if such ratios improve as a result of such fluctuations, such improved ratios may be utilized. If the Borrower has made an LCT Election for In connection with any action being taken in connection with a Limited Condition Transaction, then in connection for purposes of determining compliance with any subsequent calculation provision (other than conditions to borrowing under the Revolving Facility) which requires that no default, event of default or specified event of default, as applicable, has occurred, is continuing or would result from any ratio such action, as applicable, such condition shall, at the option of the Company, be deemed satisfied, so long as no default, event of default or basket specified event of default, as applicable, exists on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement agreements for such Limited Condition Transaction is terminated are entered into or expiresapplicable notices are made, or the date for redemption, repurchase, defeasance, satisfaction and discharge or repayment specified in an irrevocable notice for such Limited Condition Transaction expires or passes, in each case without consummation of such Limited Condition Transaction, any such ratio (other than any Financial Covenant under Section 6.08) or basket (x) shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated and (y) with respect to any Restricted Debt Payments or Dividends (and only until such time as the applicable Limited Condition Transaction has been consummated or the definitive documentation for such Limited Condition Transaction is terminated), also on a standalone basis without giving effect to such Limited Condition Transaction and the other transactions in connection therewithapplicable.
Appears in 1 contract
Limited Condition Transaction. Notwithstanding anything to the contrary herein, for purpose (a) For purposes of (i) measuring determining compliance with any provision of this Agreement which requires the relevant ratios (including calculation of the Interest Coverage Ratio, the Total Net Leverage Ratio and Ratio, the LQA Recurring Revenue Leverage Ratio (in each case)) and baskets (including baskets measured as a percentage of Consolidated EBITDA or Consolidated Total Assets) with respect to the incurrence of any Indebtedness (including any Incremental Facilities) or Liens Assets or the making of any Permitted Acquisitions or other Investments, Dividends, Restricted Debt Payments, prepayments of subordinated or junior Indebtedness, Asset Sales or other sales or dispositions of assets or fundamental changes or the designation of any Restricted Subsidiaries or Unrestricted SubsidiariesConsolidated Fixed Charge Coverage Ratio, (ii) determining compliance with representations and warranties or the occurrence of any Default or Event of Default or (iii) determining compliance with the Financial Covenantsother than, in the case of clauses (i)an acquisition or other similar Investment, certain customary “specified representations” or, at the option of the Administrative Borrower, European “certain funds” representations) or absence of Defaults or Events of Default, (iiiii) and testing availability under baskets set forth in this Agreement (iii)including baskets measured as a percentage of Consolidated Total Assets or Consolidated EBITDA) or (iv) satisfying the Payment Conditions, in each case, in connection with a Limited Condition TransactionTransaction (and each transaction entered into connection therewith, if including, without limitation, the incurrence of any Indebtedness, or the issuance of any shares of Disqualified Stock, the incurrence of any Liens or the making of Investments, Dividends, prepayments of Junior Debt, asset sales, transfers and dispositions, fundamental changes or the designation of any Restricted Subsidiary or Unrestricted Subsidiary), at the option of the Administrative Borrower has made an LCT Election (the Administrative Borrower’s election to exercise such option in connection with respect to such any Limited Condition Transaction, an “LCT Election”), the date of determination of whether any such action is permitted hereunder (including, in the case of calculating Consolidated EBITDA, the reference date for determining which Test Period shall be the most recently ended Test Period for purposes of making such calculation) shall be deemed to be (A) in the case of any acquisition or other similar Investment (including with respect to any Indebtedness to be incurred in connection therewith), either, at the Administrative Borrower’s option (x) as of the date the definitive agreements for such Limited Condition Transaction acquisition or other similar Investment are entered into into, (and not, for y) at the avoidance time that binding commitments to provide any Indebtedness to be incurred in connection therewith are provided or at the time such Indebtedness is incurred or (z) at the time of doubt, the date of consummation of the relevant acquisition or other similar Investment, (B) in the case of any Limited Condition TransactionDividends (including with respect to any Indebtedness to be incurred in connection therewith), either, at the Administrative Borrower’s option, (x) at the time of the declaration of such Dividend, (y) at the time that binding commitments to provide any Indebtedness to be incurred in connection therewith are provided or are the time such Indebtedness is incurred or (z) at the time of the making of such Dividend, and (C) in the case of any irrevocable repayment, repurchase or redemption of Indebtedness (including with respect to any Indebtedness to be incurred in connection therewith), either, at the option of the Administrative Borrower (x) at the time of delivery of notice with respect to such repayment, repurchase or redemption, (y) at the time that binding commitments to provide any Indebtedness to be incurred in connection therewith are provided or at the time such Indebtedness is incurred or (z) at the time of the making of such repayment, repurchase or redemption (each such time described in clauses (A) through (C), the “LCT Test Date”), in each case, after giving effect to the relevant transaction, any related Indebtedness (including the intended use of proceeds thereof), and all other permitted pro forma adjustments on a pro forma basis, and if, after giving pro forma effect to such the Limited Condition Transaction and the other transactions to be entered into in connection therewith as if they had occurred (with respect to income statement items) at the beginning of, or (with respect to balance sheet items) on the last day of, of the most recent Test Period ending prior to the LCT Test Date, the Group Members Borrowers or other Restricted Subsidiaries could have taken such action on the relevant LCT Test Date in compliance with such ratio, basketrepresentation, representation and warranty warranty, absence of Defaults or “Default” or “Event Events of Default” blocker, basket or Payment Condition, such ratio, basketrepresentation, covenantwarranty, representation and warranty absence of Defaults or “Default” or “Event Events of Default” blocker , basket or Payment Condition shall be deemed to have been complied with, provided, that (I) in the event the Administrative Borrower makes an LCT Election in connection with (and no Default or Event the making of Default a Dividend, a reserve shall be deemed established in an amount no greater than the amount of such Dividend (or such lesser amount as Agent shall agree in its Permitted Discretion) at the time of making such LCT Election (such reserve, a “LCT Dividend Reserve”) and (II) the determination of or testing of a Payment Condition on an LCT Test Date in connection with a Limited Condition Transaction shall only be permitted to have arisen thereafter with respect to the extent such Limited Condition Transaction from any is consummated within sixty (60) days of such failure to comply with such ratio, basket or representation and warranty). LCT Test Date.
(b) For the avoidance of doubt, if the Administrative Borrower has made an LCT Election and any of the ratios, baskets, representations and warranties ratios or “Default” or “Event of Default” blocker baskets for which compliance was determined or tested as of the LCT Test Date would thereafter have failed to have been satisfied are exceeded as a result of fluctuations in any such ratio or basket, basket (including due to fluctuations in Consolidated EBITDA, Unrestricted Cash, Consolidated Total Funded Indebtedness of the target of any acquisition or Consolidated Total Assets or otherwise, other similar Investment that is part of such Limited Condition Transaction) at or prior to the consummation of the relevant transaction or action, such baskets, ratios, representations and warranties baskets or “Default” or “Event of Default” blocker ratios will not be deemed to have failed to have been satisfied exceeded as a result of such fluctuations. If the Administrative Borrower has made an LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio such ratios or basket baskets on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement for such Limited Condition Transaction is terminated or expires, expires or the date for redemption, repurchase, defeasance, satisfaction and discharge or repayment specified in an such irrevocable notice for such Limited Condition Transaction expires or passesis rescinded, in each case as applicable, without consummation of such Limited Condition Transaction, any such ratio (other than any Financial Covenant under Section 6.08) or basket (x) shall be calculated on a Pro Forma Basis pro forma basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated and (y) with respect to consummated. Notwithstanding the foregoing, assets of the target of any Restricted Debt Payments acquisition or Dividends (and only until such time as the applicable other similar Investment that is part of a Limited Condition Transaction has been consummated or shall not be included in the definitive documentation for Borrowing Base until the date on which such Limited Condition Transaction is terminatedconsummated.
(c) Notwithstanding anything herein to the contrary (other than as set forth in Section 2.1.9(c)), also on a standalone basis without giving effect this Section 1.8 shall not be applicable in determining whether the conditions precedent set forth in Section 6 have been satisfied with respect to such Limited Condition Transaction and the other transactions in connection therewithmaking of any Loan or the issuance, extension or renewal of any Letter of Credit.
Appears in 1 contract
Sources: Abl Credit Agreement (WillScot Mobile Mini Holdings Corp.)
Limited Condition Transaction. Notwithstanding anything to the contrary herein, for purpose purposes of (i) measuring the relevant ratios (including the Total Leverage Ratio and the LQA Recurring Revenue First Lien Leverage Ratio (in each caseincluding, without limitation, for purposes of determining pro forma compliance with the Financial Covenant as a condition to effecting any such transaction), the Senior Secured Leverage Ratio, the Total Leverage Ratio, the Consolidated Interest Coverage Ratio, the amount of cash or Cash Equivalents or Consolidated Interest Expense) and baskets (including baskets measured as a percentage of Consolidated EBITDA or Consolidated Total Assets) with respect to the incurrence of any Indebtedness (including any Incremental Facilities) Facilities and Permitted Incremental Equivalent Debt or Liens or the making of any Permitted Acquisitions or other similar Investments, Dividends, Restricted Debt Payments, prepayments of subordinated or junior Indebtedness, Asset Sales or other sales or dispositions of assets or fundamental changes or changes, the designation of any Restricted Subsidiaries or Unrestricted Subsidiaries, or (ii) determining compliance with representations and warranties or the occurrence of any Default or Event of Default or (iii) determining compliance with the Financial CovenantsDefault, in the case of clauses (i), (ii) and (iiiii), in connection with a Limited Condition Transaction, if the Borrower has made an LCT Election with respect to such Limited Condition Transaction, the date of determination of whether any such action is permitted hereunder (including, in the case of calculating Consolidated EBITDA, the reference date for determining which Test Period shall be the most recently ended Test Period for purposes of making such calculation) shall be deemed to be the date the definitive agreements for (or letter of intent, or in the case of an Limited Condition Transaction that involves some other manner of establishing a binding obligation (including, without limitation under local law), such other obligations or commitment to consummate) such Limited Condition Transaction are entered into (and not, for the avoidance of doubt, or the date of consummation of any the applicable Limited Condition TransactionTransaction is declared (including through public announcement) (the “LCT Test Date”), and if, after giving pro forma effect to such Limited Condition Transaction and the other transactions to be entered into in connection therewith as if they had occurred (with respect to income statement items) at the beginning of, or (with respect to balance sheet items) on the last day of, the most recent Test Period ending prior to the LCT Test Date, the Group Members could have taken such action on the relevant LCT Test Date in compliance with such ratio, basket, representation and warranty warranty, or “Default” or “Event of DefaultDefault “blocker” blocker, such ratio, basket, covenant, or representation and warranty or “Default” or “Event of DefaultDefault “blocker” blocker shall be deemed to have been complied with (and no Default or Event of Default shall be deemed to have arisen thereafter with respect to such Limited Condition Transaction from any such failure to comply with such ratio, basket basket, or representation and warranty). For the avoidance of doubt, if the Borrower has made an LCT Election and any of the ratios, baskets, Default or Event of Default “blockers” or representations and warranties or “Default” or “Event of Default” blocker for which compliance was determined or tested as of the LCT Test Date would thereafter have failed to have been satisfied as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDA, Unrestricted Cash, Consolidated Total Funded Indebtedness or Consolidated Total Assets or otherwise, at or prior to the consummation of the relevant transaction or action, such baskets, ratios, ratios or representations and warranties or “Default” or “Event of Default” blocker will not be deemed to have failed to have been satisfied as a result of such fluctuationsfluctuations or otherwise. If the Borrower has made an LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio or basket on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement (or letter of intent, declaration or other obligation or commitment) for such Limited Condition Transaction is terminated or expires, or the date for redemption, repurchase, defeasance, satisfaction and discharge or repayment specified in an irrevocable notice for such Limited Condition Transaction expires or passes, in each case without consummation of such Limited Condition Transaction, any such ratio (other than any the Financial Covenant under Section 6.08) or basket (x) shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated and (y) with consummated. Notwithstanding the foregoing provisions of this paragraph or any other provision of this Agreement, any unfunded Commitments outstanding at any time in respect of any individual Incremental Facility pursuant to any Restricted Debt Payments or Dividends (and only until such time as the applicable Section 2.20 established to finance an Limited Condition Transaction has been consummated may be terminated only by the lenders holding more than 50% of the aggregate amount of the Commitments in respect of such Incremental Facility (or by the definitive documentation for Administrative Agent acting at the request of such Limited Condition Transaction is terminatedLenders), also on a standalone basis without giving effect to such Limited Condition Transaction and not, for the avoidance of doubt, automatically or by the Required Lenders or any other transactions in connection therewithLenders (or by the Administrative Agent acting at the request of the Required Lenders or any other Lenders).
Appears in 1 contract
Sources: Second Lien Credit Agreement (Allvue Systems Holdings, Inc.)
Limited Condition Transaction. Notwithstanding anything to the contrary hereinin this Agreement, for purpose purposes of (i) measuring determining compliance with any provision of this Agreement (other than Section 6.1 and Section 6.3) that requires the relevant ratios (including the Total Leverage Ratio and the LQA Recurring Revenue Leverage Ratio (in each case)) and baskets (including baskets measured as a percentage of Consolidated EBITDA or Consolidated Total Assets) with respect to the incurrence calculation of any Indebtedness (including any Incremental Facilities) or Liens or the making of any Permitted Acquisitions or other Investments, Dividends, Restricted Debt Payments, prepayments of subordinated or junior Indebtedness, Asset Sales or other sales or dispositions of assets or fundamental changes or the designation of any Restricted Subsidiaries or Unrestricted Subsidiariesapplicable financial ratio, (ii) determining compliance with representations and warranties representations, warranties, defaults or events of default (other than Events of Default under Section 8.1(a), (b), (g) or (h), none of which shall exist on the LCT Test Date or the occurrence date of consummation of any Default or Event of Default Limited Condition Transaction) or (iii) determining compliance with the Financial Covenantstesting availability under baskets set forth herein (including, in each case with respect to the case incurrence of clauses (iIndebtedness incurred in connection therewith), (ii) and (iii)in each case, in connection with a Limited Condition Transaction, if Transaction by the Borrower has made an LCT Election and its Restricted Subsidiaries or any other transaction or action permitted hereunder that is consummated in connection with a Limited Condition Transaction (other than for purposes of borrowing Revolving Loans and Incremental Term Facilities, each of which shall remain subject to the terms and conditions thereof with respect to such the impact, if any, of any Limited Condition Transaction), at the irrevocable option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), the date of determination of whether any such action Limited Condition Transaction is permitted hereunder (includinghereunder, in the case of calculating Consolidated EBITDA, the reference date for determining which Test Period shall be the most recently ended Test Period for purposes of making such calculation) shall be deemed to be the date the definitive agreements for such Limited Condition Transaction are entered into (and not, for the avoidance of doubt, the date of consummation of any Limited Condition Transaction) (the “LCT Test Date”), and if, after giving pro forma effect to such the Limited Condition Transaction and the other transactions to be entered into in connection therewith as if they had occurred (with respect to income statement items) at the beginning of, or (with respect to balance sheet items) on the last day of, of the most recent Test Period ending prior to the LCT Test Date, the Group Members Borrower could have taken such action on the relevant LCT Test Date in compliance with such ratio, ratio or basket, representation and warranty such ratio or “Default” or “Event of Default” blocker, such ratio, basket, covenant, representation and warranty or “Default” or “Event of Default” blocker basket shall be deemed to have been complied with (and no Default or Event of Default shall be deemed to have arisen thereafter with respect to for such Limited Condition Transaction from any such failure Transaction; provided that, no LCT Test Date may occur more than 90 days prior to comply with such ratio, basket or representation and warranty)the consummation of the applicable Acquisition. For the avoidance of doubt, if the Borrower has made an LCT Election and any of the ratios, baskets, representations and warranties ratios or “Default” or “Event of Default” blocker baskets for which compliance was determined or tested as of the LCT Test Date would thereafter have failed to have been satisfied are exceeded as a result of fluctuations in any such ratio or basket, basket (including due to fluctuations in Consolidated EBITDA, Unrestricted Cash, Consolidated Total Funded Indebtedness or Consolidated Total Assets or otherwise, of the target of any Limited Condition Transaction) at or prior to the consummation of the relevant transaction or action, such baskets, ratios, representations and warranties baskets or “Default” or “Event of Default” blocker ratios will not be deemed to have failed to have been satisfied exceeded as a result of such fluctuations. If the Borrower has made an LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio or basket (other than maintenance testing of the financial covenants in Article VI) on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement for such Limited Condition Transaction is terminated or expires, or the date for redemption, repurchase, defeasance, satisfaction and discharge or repayment specified in an irrevocable notice for such Limited Condition Transaction expires or passes, in each case without consummation of such Limited Condition Transaction, any such ratio (other than any Financial Covenant under Section 6.08) or basket shall be (x) shall be calculated on a Pro Forma Basis pro forma basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of debt and the use of proceeds thereof) have been consummated and (y) also calculated (and tested) on a pro forma basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have not been consummated and consummated; provided that (y) other than solely with respect to any Restricted Debt Payments or Dividends (and only until such time as the applicable Limited Condition Transaction has been consummated or the definitive documentation for incurrence test under which such Limited Condition Transaction is terminatedbeing made and the test set forth in the immediately preceding clause (x)) Consolidated EBITDA, also on a standalone basis without giving effect to assets and Consolidated Net Income of any target of such Limited Condition Transaction can only be used in the determination of the relevant ratio and the other transactions in connection therewithbaskets if and when such Limited Condition Transaction has closed.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Amneal Pharmaceuticals, Inc.)
Limited Condition Transaction. Notwithstanding anything to the contrary herein, for purpose of (i) measuring the relevant ratios (including Consolidated EBITDA, the Total Leverage Ratio and Ratio, the LQA LTM Recurring Revenue Leverage Ratio Ratio, cash or Cash Equivalents (for the purpose of any “netting” calculation on any LCT Test Date) or Consolidated Interest Expense (in each case)) and baskets (including baskets measured as a percentage of Consolidated EBITDA or Consolidated Total Assets) with respect to the incurrence of any Indebtedness (including any Incremental Facilities) or Liens or the making of any Permitted Acquisitions or other Investments, Dividends, Restricted Debt Payments, prepayments of subordinated or junior Indebtedness, Asset Sales or other sales or dispositions of assets or fundamental changes or the designation of any Restricted Subsidiaries or Unrestricted Subsidiaries, (ii) determining compliance with representations and warranties or the occurrence of any Default or Event of Default or (iii) determining compliance with the Financial CovenantsCovenants set forth in Section 6.08, in the case of clauses (i), (ii) and (iii), in connection with a Limited Condition Transaction, if the Borrower has made an LCT Election with respect to such Limited Condition Transaction, the date of determination of whether any such action is permitted hereunder (including, in the case of calculating Consolidated EBITDA, the reference date for determining which Test Period shall be the most recently ended Test Period for purposes of making such calculation) shall be deemed to be the date the definitive agreements (or in the case of an LCT Transaction that involves some other manner of establishing a binding obligation under local law, such other binding obligation to consummate such transaction) for such Limited Condition Transaction are entered into (and not, for the avoidance of doubt, the date of consummation of any Limited Condition Transaction) (the “LCT Test Date”), and if, after giving pro forma effect to such Limited Condition Transaction and the other transactions to be entered into in connection therewith as if they had occurred (with respect to income statement items) at the beginning of, or (with respect to balance sheet items) on the last day of, the most recent Test Period ending prior to the LCT Test Date, the Group Members could have taken such action on the relevant LCT Test Date in compliance with such ratio, basket, representation and warranty or “Default” or “Event of Default” blocker, such ratio, basket, covenant, representation and warranty or “Default” or “Event of Default” blocker shall be deemed to have been complied with (and no Default or Event of Default shall be deemed to have arisen thereafter with respect to such Limited Condition Transaction from any such failure to comply with such ratio, basket or representation and warranty). For the avoidance of doubt, if the Borrower has made an LCT Election and any of the ratios, baskets, representations and warranties or “Default” or “Event of Default” blocker for which compliance was determined or tested as of the LCT Test Date would thereafter have failed to have been satisfied as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDA, Unrestricted Cash, Consolidated Total Funded Indebtedness or Consolidated Total Assets or otherwise, at or prior to the consummation of the relevant transaction or action, such baskets, ratios, representations and warranties or “Default” or “Event of Default” blocker will not be deemed to have failed to have been satisfied as a result of such fluctuations. If the Borrower has made an LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio or basket on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement (or in the case of an LCT Transaction that involves some other manner of establishing a binding obligation under local law, such other binding obligation to consummate such transaction) for such Limited Condition Transaction is terminated or expires, or the date for redemption, repurchase, defeasance, satisfaction and discharge or repayment specified in an irrevocable notice for such Limited Condition Transaction expires or passes, in each case without consummation of such Limited Condition Transaction, any such ratio (other than any Financial Covenant under Section 6.08) or basket (x) shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated and (y) with respect to any Restricted Debt Payments or Dividends only (and only until such time as the applicable Limited Condition Transaction has been consummated or the definitive documentation for such Limited Condition Transaction is terminated), also on a standalone basis without giving effect to such Limited Condition Transaction and the other transactions in connection therewith. Notwithstanding the foregoing provisions of this paragraph or any other provision of this Agreement, any unfunded Commitments outstanding at any time in respect of any individual Incremental Facility pursuant to Section 2.20 established to finance an LCT Transaction may be terminated only by the lenders holding more than 50% of the aggregate amount of the Commitments in respect of such Incremental Facility (or by the Administrative Agent acting at the request of such Lenders), and not, for the avoidance of doubt, automatically or by the Required Lenders or any other Lenders (or by the Administrative Agent acting at the request of the Required Lenders or any other Lenders).
Appears in 1 contract
Limited Condition Transaction. Notwithstanding anything to the contrary herein, for purpose to the extent that the terms of this Agreement require (ia) measuring the relevant ratios compliance with any financial ratio or test (including the Total any Leverage Ratio and the LQA Recurring Revenue Leverage Interest Coverage Ratio (tests) or testing availability under baskets set forth in each case)) and baskets this Agreement (including baskets measured as a percentage of Consolidated EBITDA or Consolidated Total Assets) with respect subject to the incurrence of any Indebtedness (including any Incremental Facilities) or Liens or the making of any Permitted Acquisitions or other Investments, Dividends, Restricted Debt Payments, prepayments of subordinated or junior Indebtedness, Asset Sales or other sales or dispositions of assets or fundamental changes or the designation of any Restricted Subsidiaries or Unrestricted Subsidiaries, (ii) determining compliance with representations and warranties or the occurrence of any Default or Event of Default or (iii) determining compliance with the Financial Covenants, in the case of clauses (iconditions), (iib) the absence of a Default or an Event of Default, or (c) a determination as to whether the representations and warranties contained in Article VI hereof or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (iiiand in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect), in each case in connection with the consummation of a Limited Condition Transaction, if the Borrower has made an LCT Election with respect to such Limited Condition Transaction, the date of determination shall, at the irrevocable option of whether any such action is permitted hereunder (includingthe Borrower, in the case of calculating Consolidated EBITDA, the reference date for determining which Test Period shall be the most recently ended Test Period for purposes of making such calculation) shall be deemed to be the date the definitive agreements for such Limited Condition Transaction are entered into (and not, for the avoidance of doubt, the date of consummation of any Limited Condition Transaction) (the “LCT Test Date”), and if, ) after giving pro forma effect to such Limited Condition Transaction and the other transactions to be entered into in connection therewith as if they had occurred (with respect to income statement items) at including any incurrence of Indebtedness and the beginning of, or (with respect to balance sheet itemsuse of proceeds thereof) on a pro forma basis; provided, that, notwithstanding the last day offoregoing, in connection with any Limited Condition Transaction: (i) if the most recent Test Period ending prior proceeds of a Loan are being used to finance a Limited Condition Transaction, (1) the LCT Test Date, the Group Members could have taken such action on the relevant LCT Test Date conditions set forth in compliance with such ratio, basket, representation and warranty or “Default” or “Event of Default” blocker, such ratio, basket, covenant, representation and warranty or “Default” or “Event of Default” blocker Section 4.1 shall be deemed to have been complied with satisfied if (and A) no Default or Event of Default shall have occurred and be deemed continuing as of the applicable LCT Test Date and (B) no Event of Default pursuant to Section 7.1 or Section 7.10 shall have arisen thereafter with respect to occurred and be continuing at the time of consummation of such Limited Condition Transaction from and (2) the conditions set forth in Section 4.1(d) shall be required to be satisfied at the time of closing of the Limited Condition Transaction and funding of such Loan but shall be limited to the Specified Representations being true and correct in all material respects on such date and the Specified Transaction Representations being true and correct on such date; and (ii) such Limited Condition Transaction and the related Indebtedness to be incurred (and any associated Lien) and the use of proceeds thereof (and the consummation of any Acquisition) shall be deemed incurred and/or applied on or following the LCT Test Date until such failure to comply time as the Indebtedness is actually incurred, the Limited Condition Transaction is consummated or the applicable definitive agreement is terminated or expires without actually consummating the applicable Limited Condition Transaction) for purposes of compliance on a pro forma basis with such ratioany subsequent applicable calculation of any financial covenant (other than the testing of any ratio for purposes of compliance with Section 5.7 hereof or the “Applicable Margin”), basket or representation and warranty)the amount or availability of any basket, including baskets measured as a percentage of Consolidated EBITDA. For the avoidance of doubt, if the Borrower has made an LCT Election and any of the ratios, baskets, representations and warranties such ratios or “Default” or “Event of Default” blocker amounts for which compliance was determined or tested as of the LCT Test Date would are thereafter have failed to have been satisfied exceeded as a result of fluctuations in any such ratio or basket, amount (including due to fluctuations in Consolidated EBITDA, Unrestricted Cash, Consolidated Total Funded Indebtedness or Consolidated Total Assets or otherwise), at or prior to the consummation of the relevant transaction or actionLimited Condition Transaction, such baskets, ratios, representations and warranties ratios or “Default” or “Event of Default” blocker amounts will not be deemed to have failed to have been satisfied exceeded as a result of such fluctuations. If the Borrower has made an LCT Election fluctuations solely for any Limited Condition Transaction, then in connection with any subsequent calculation purposes of any ratio or basket on or following determining whether the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is permitted to be consummated or (ii) the date that the definitive agreement for such Limited Condition Transaction is terminated or expires, or the date for redemption, repurchase, defeasance, satisfaction and discharge or repayment specified in an irrevocable notice for such Limited Condition Transaction expires or passes, in each case without consummation of such Limited Condition Transaction, any such ratio (other than any Financial Covenant under Section 6.08) or basket (x) shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated and (y) with respect to any Restricted Debt Payments or Dividends (and only until such time as the applicable Limited Condition Transaction has been consummated or the definitive documentation for such Limited Condition Transaction is terminated), also on a standalone basis without giving effect to such Limited Condition Transaction and the other transactions in connection therewithtaken.
Appears in 1 contract
Sources: Credit Agreement (Applied Industrial Technologies Inc)
Limited Condition Transaction. Notwithstanding anything to the contrary herein, for purpose of (i) measuring the relevant ratios (including the Total Leverage Ratio and the LQA Recurring Revenue Leverage Ratio (in each case)) and baskets (including baskets measured as a percentage of Consolidated EBITDA or Consolidated Total Assets) In connection with respect to the incurrence of any Indebtedness (including any Incremental Facilities) or Liens or the making of any Permitted Acquisitions or other Investments, Dividends, Restricted Debt Payments, prepayments of subordinated or junior Indebtedness, Asset Sales or other sales or dispositions of assets or fundamental changes or the designation of any Restricted Subsidiaries or Unrestricted Subsidiaries, (ii) determining compliance with representations and warranties or the occurrence of any Default or Event of Default or (iii) determining compliance with the Financial Covenants, in the case of clauses (i), (ii) and (iii), action being taken in connection with a Limited Condition Transaction, if for purposes of determining compliance with any provision of this Indenture which is subject to a default or an event of default qualifier or requires the Borrower has made an LCT Election calculation of any financial ratio or test, in each case, at the option of the Company (the Company’s election to exercise such option in connection with respect to such any Limited Condition Transaction, an “LCT Election”), the date of determination of whether any such action is permitted hereunder under this Indenture (includingor any such requirement or condition therefor is complied with or satisfied (including as to the absence of any continuing Default or Event of Default (other than with respect to any Event of Default described in clause (a), in the case (b) or (g) of calculating Consolidated EBITDA, the reference date for determining which Test Period shall be the most recently ended Test Period for purposes of making such calculationSection 6.01)) shall will be deemed to be the date the definitive agreements or the date of delivery of the notice of redemption, as the case may be, for such Limited Condition Transaction are entered into (and notor delivered, for as the avoidance of doubt, the date of consummation of any Limited Condition Transaction) case may be (the “LCT Test Date”), and if, after giving pro forma effect to such the Limited Condition Transaction (and the other transactions to be entered into in connection therewith as if they had occurred (with respect to income statement items) at the beginning of, or (with respect to balance sheet items) on the last day oftherewith), the most recent Test Period ending prior Company or any of its Restricted Subsidiaries would have been permitted to the LCT Test Date, the Group Members could have taken take such action on the relevant LCT Test Date in compliance with such ratio, basket, representation ratio or test (and warranty or “Default” or “Event of Default” blockerany related requirements and conditions), such ratio, basket, covenant, representation ratio or test (and warranty or “Default” or “Event of Default” blocker shall any related requirements and conditions) will be deemed to have been complied with (and no Default or Event of Default shall be deemed satisfied). Upon making an LCT Election, the Company will deliver an Officer’s Certificate to have arisen thereafter with respect the Trustee demonstrating compliance on a pro forma basis after giving effect to such Limited Condition Transaction from on such LCT Test Date with any such failure to comply with such ratio, basket relevant ratios or representation and warranty)tests. For the avoidance of doubt, if the Borrower Company has made an LCT Election and any of the ratios, baskets, representations and warranties ratios or “Default” or “Event of Default” blocker tests for which compliance was determined or tested as of the LCT Test Date would thereafter have failed to have been satisfied complied with as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDA, Unrestricted Cash, Consolidated Total Funded Indebtedness or Consolidated Total Assets or otherwisetest, at or prior to the consummation of the relevant transaction or actionLimited Condition Transaction, such baskets, ratios, representations and warranties tests or “Default” or “Event of Default” blocker ratios will not be deemed to have failed to have been satisfied complied with as a result of such fluctuations. If the Borrower Company has made an LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio or basket on test with respect to the incurrence of Indebtedness or Liens, the making of Restricted Payments, the making of any Permitted Investment, the making of any Asset Sale, or the designation of an Unrestricted Subsidiary (each, a “Subsequent Transaction”) following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement or irrevocable notice for such Limited Condition Transaction is terminated or expires, or the date for redemption, repurchase, defeasance, satisfaction and discharge or repayment specified in an irrevocable notice for such Limited Condition Transaction expires or passes, in each case without consummation of such Limited Condition Transaction, for purposes of determining whether such Subsequent Transaction is permitted under this Indenture, any such ratio (other than any Financial Covenant under Section 6.08) or basket (x) test shall be calculated required to be satisfied on a Pro Forma Basis pro forma basis (a) assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated and (yb) with respect to any in the case of a Restricted Debt Payments or Dividends (and only until such time as the applicable Limited Condition Transaction has been consummated or the definitive documentation for such Limited Condition Transaction is terminated)Payment, also on a standalone basis without giving effect to assuming such Limited Condition Transaction and the other transactions in connection therewiththerewith (including any incurrence of Indebtedness and the use of proceeds thereof) have not been consummated.
Appears in 1 contract
Sources: Indenture (Everi Holdings Inc.)
Limited Condition Transaction. Notwithstanding anything to (a) When calculating the contrary herein, for purpose availability under any basket or ratio under this Indenture or compliance with any provision of (i) measuring the relevant ratios this Indenture in connection with any Limited Condition Transaction and any actions or transactions related thereto (including acquisitions, Investments, the Total Leverage Ratio Incurrence or issuance of Indebtedness and the LQA Recurring Revenue Leverage Ratio (use of the proceeds thereof, the Incurrence of Liens, repayments, Restricted Payments and Asset Dispositions), in each case, at the option of the Company (the Company’s election to exercise such option, an “LCT Election”)) , the date of determination for availability under any such basket or ratio and baskets whether any such action or transaction is permitted (or any requirement or condition therefor is complied with or satisfied (including baskets measured as a percentage of Consolidated EBITDA or Consolidated Total Assets) with respect to the incurrence of any Indebtedness (including any Incremental Facilities) or Liens or the making of any Permitted Acquisitions or other Investments, Dividends, Restricted Debt Payments, prepayments of subordinated or junior Indebtedness, Asset Sales or other sales or dispositions of assets or fundamental changes or the designation of any Restricted Subsidiaries or Unrestricted Subsidiaries, (ii) determining compliance with representations and warranties or the occurrence absence of any Default or Event of Default or (iiiDefault)) determining compliance with the Financial Covenants, in the case of clauses (i), (ii) and (iii), in connection with a Limited Condition Transaction, if the Borrower has made an LCT Election with respect to such Limited Condition Transaction, the date of determination of whether any such action is permitted hereunder (including, in the case of calculating Consolidated EBITDA, the reference date for determining which Test Period shall be the most recently ended Test Period for purposes of making such calculation) under this Indenture shall be deemed to be the date (the “LCT Test Date”) the definitive agreements for such Limited Condition Transaction are entered into (and notor, for the avoidance of doubtif applicable, the date of consummation delivery of any Limited Condition Transactionan irrevocable notice, declaration of a dividend or similar event) (the “LCT Test Date”), and if, after giving pro forma effect to such the Limited Condition Transaction and the other any actions or transactions to be entered into in connection therewith as if they had occurred related thereto (with respect to income statement items) at the beginning ofincluding acquisitions, or (with respect to balance sheet items) on the last day ofInvestments, the most recent Test Period ending prior to Incurrence or issuance of Indebtedness and the LCT Test Dateuse of proceeds thereof, the Group Members could Incurrence of Liens, repayments, Restricted Payments and Asset Dispositions) and any related pro forma adjustments, the Company or any of its Restricted Subsidiaries would have taken been permitted to take such action actions or consummate such transactions on the relevant LCT Test Date in compliance with such ratio, basket, representation test or basket (and warranty or “Default” or “Event of Default” blockerany related requirements and conditions), such ratio, basket, covenant, representation test or basket (and warranty or “Default” or “Event of Default” blocker any related requirements and conditions) shall be deemed to have been complied with (or satisfied) for all purposes; provided that (a) compliance with such ratios, tests or baskets (and no Default any related requirements and conditions) shall not be determined or Event tested at any time after the applicable LCT Test Date for such Limited Condition Transaction and any actions or transactions related thereto (including acquisitions, Investments, the Incurrence or issuance of Default shall Indebtedness and the use of proceeds thereof, the Incurrence of Liens, repayments, Restricted Payments and Asset Dispositions) and (b) Consolidated EBITDA for purposes of the Consolidated Coverage Ratio, Secured Net Leverage Ratio and Net Leverage Ratio will be deemed to have arisen thereafter calculated using an assumed interest rate based on the indicative interest margin contained in any financing commitment documentation with respect to such Limited Condition Transaction from any Indebtedness or, if no such failure to comply with such ratioindicative interest margin exists, basket or representation and warranty). as reasonably determined by the Company in good faith.
(b) For the avoidance of doubt, if the Borrower Company has made an LCT Election and Election, (1) if any of the ratios, baskets, representations and warranties tests or “Default” or “Event of Default” blocker baskets for which compliance was determined or tested as of the LCT Test Date would thereafter at any time after the LCT Test Date have been exceeded or otherwise failed to have been satisfied complied with as a result of fluctuations in any such ratio ratio, test or basket, including due to fluctuations in Consolidated EBITDA, Unrestricted Cash, Consolidated Total Funded Indebtedness or Consolidated Total Assets or otherwise, at or prior to the consummation EBITDA of the relevant transaction or actionCompany, such baskets, ratios, representations and warranties tests or “Default” or “Event of Default” blocker ratios will not be deemed to have been exceeded or failed to have been satisfied complied with as a result of such fluctuations. If fluctuations (and no Default or Event of Default shall be deemed to have occurred due to such failure to comply), and (2) in calculating the Borrower has made an LCT Election for availability under any Limited Condition Transactionratio, then test or basket in connection with any subsequent calculation of any ratio action or basket on or transaction unrelated to such Limited Conditional Transaction following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) and the date that the definitive agreement for such Limited Condition Transaction is terminated or expires, or the date for redemption, repurchase, defeasance, satisfaction and discharge purchase or repayment specified in an irrevocable notice for such Limited Condition Transaction is terminated, expires or passes, in each case as applicable, without consummation of such Limited Condition Transaction, any such ratio (other than any Financial Covenant under Section 6.08) ratio, test or basket (x) shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated and (y) with respect to any Restricted Debt Payments determined or Dividends (and only until such time as the applicable Limited Condition Transaction has been consummated or the definitive documentation for such Limited Condition Transaction is terminated), also on a standalone basis without tested giving pro forma effect to such Limited Condition Transaction and the other transactions in connection therewithTransaction.
Appears in 1 contract
Limited Condition Transaction. Notwithstanding anything When calculating compliance with:
(a) Adjusted Leverage pursuant to the contrary hereinClause 25.2 (Financial condition) ; and/or
(b) determining whether an Event of Default is continuing or would result, for purpose of (i) measuring the relevant ratios (including the Total Leverage Ratio and the LQA Recurring Revenue Leverage Ratio purposes (in each case)) paragraph (a)(i) of Clause 8.6 (Conditions to establishment) and/or paragraph (f) of the definition of Permitted Acquisition and baskets (including baskets measured as a percentage of Consolidated EBITDA or Consolidated Total Assets) with respect the permission to the incurrence of consummate any Indebtedness (including any Incremental Facilities) or Liens or the making of any Permitted Acquisitions or other Investments, Dividends, Restricted Debt Payments, prepayments of subordinated or junior Indebtedness, Asset Sales or other sales or dispositions of assets or fundamental changes or the designation of any Restricted Subsidiaries or Unrestricted Subsidiaries, (ii) determining compliance with representations and warranties or the occurrence of any Default or Event of Default or (iii) determining compliance with the Financial Covenants, in the case of clauses (i), (ii) and (iii), in connection with a Limited Condition Transaction, if the Borrower has made an LCT Election with respect to such Limited Condition TransactionTransaction only, the date of determination of whether any such action Limited Condition Transaction is so permitted hereunder under this Agreement (including, in the case or whether such Event of calculating Consolidated EBITDA, the reference date Default has occurred and is continuing for determining which Test Period shall be the most recently ended Test Period for those purposes of making such calculationonly) shall be deemed to be (at the option of the Company) the date the relevant member of the Group enters into a legally binding definitive agreements for agreement in respect of such Limited Condition Transaction are entered into (and not, for the avoidance of doubt, a Permitted Acquisition and/or the date the Company delivers an Incremental Facility Notice to the Agent (by reference to the facts and circumstances at the time the member of consummation of any Limited Condition Transactionthe Group becomes so committed or delivers such notice)) (the “LCT Test Date”)) and, and ifin each case, if after giving pro forma effect to the Limited Condition Transaction and taking into account Permitted Synergies in the manner permitted by the Agreement, the Company would have been permitted to take such actions or consummate such transactions on the relevant Test Date, the requirement for the purposes of such Limited Condition Transaction and the other transactions to be entered into that (1) no Event of Default is continuing or would result in connection therewith as if they had occurred with the relevant acquisition for the purposes of paragraph (f) of the definition of Permitted Acquisition and (2) that the Company is in compliance with respect Adjusted Leverage pursuant to income statement itemsClause 25.2 (Financial condition) at the beginning of, or (with respect to balance sheet items) on the last day of, the most recent Test Period ending prior to the LCT Test Date, the Group Members could have taken time such action on the relevant LCT Test Date in compliance with such ratio, basket, representation and warranty or “Default” or “Event of Default” blocker, such ratio, basket, covenant, representation and warranty or “Default” or “Event of Default” blocker Limited Condition Transaction is consummated shall be deemed to have been complied with (and no Default or Event satisfied) for the purposes of Default shall be deemed to have arisen thereafter with respect to consummating such Limited Condition Transaction from any such failure to comply with such ratio, basket or representation and warranty). For the avoidance of doubt, if the Borrower has made an LCT Election and any of the ratios, baskets, representations and warranties or “Default” or “Event of Default” blocker for which compliance was determined or tested as of the LCT Test Date would thereafter have failed to have been satisfied as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDA, Unrestricted Cash, Consolidated Total Funded Indebtedness or Consolidated Total Assets or otherwise, at or prior to the consummation of the relevant transaction or action, such baskets, ratios, representations and warranties or “Default” or “Event of Default” blocker will not be deemed to have failed to have been satisfied as a result of such fluctuations. If the Borrower has made an LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio or basket on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement for such Limited Condition Transaction is terminated or expires, or the date for redemption, repurchase, defeasance, satisfaction and discharge or repayment specified in an irrevocable notice for such Limited Condition Transaction expires or passes, in each case without consummation of such Limited Condition Transaction, any such ratio (other than any Financial Covenant under Section 6.08) or basket (x) shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated and (y) with respect to any Restricted Debt Payments or Dividends (and only until such time as the applicable Limited Condition Transaction has been consummated or the definitive documentation for such Limited Condition Transaction is terminated), also on a standalone basis without giving effect to such Limited Condition Transaction and the other transactions in connection therewithonly.
Appears in 1 contract
Limited Condition Transaction. Notwithstanding anything to the contrary herein, for purpose purposes of (i) measuring the relevant ratios (including the First Lien Leverage Ratio, the Senior Secured Leverage Ratio, and the Total Leverage Ratio and (including, without limitation, for purposes of determining pro forma compliance with the LQA Recurring Revenue Leverage Ratio (in each caseFinancial Covenant as a condition to effecting any such transaction but not for determining actual compliance with the Financial Covenant)) and baskets (including baskets measured as a percentage of Consolidated EBITDA or Consolidated Total Assets) with respect to the incurrence of any Indebtedness (including any Incremental FacilitiesFacilities and Permitted Incremental Equivalent Debt but excluding Revolving Loans) or Liens or the making of any Permitted Acquisitions or other similar Investments, Dividends, Restricted Debt Payments, prepayments of subordinated or junior Indebtedness, Asset Sales or other sales or dispositions of assets or fundamental changes or the designation of any Restricted Subsidiaries or Unrestricted Subsidiaries, or (ii) determining compliance with representations and warranties or the occurrence of any Default or Event of Default or (iii) determining compliance other than for purposes of Section 4.02 with the Financial Covenantsrespect to Borrowings of Revolving Loans), in the case of clauses (i), (ii) and (iiiii), in connection with a Limited Condition Transaction, if the Borrower has Borrowers have made an LCT Election with respect to such Limited Condition Transaction, the date of determination of whether any such action is permitted hereunder (including, in the case of calculating Consolidated EBITDA, the reference date for determining which Test Period shall be the most recently ended Test Period for purposes of making such calculation) shall be deemed to be the date the definitive agreements for such Limited Condition Transaction are entered into (and not, for the avoidance of doubt, the date of consummation of any Limited Condition Transaction) (the “LCT Test Date”), and if, after giving pro forma effect to such Limited Condition Transaction and the other transactions to be entered into in connection therewith as if they had occurred (with respect to income statement items) at the beginning of, or (with respect to balance sheet items) on the last day of, the most recent Test Period ending prior to the LCT Test Date, the Group Members Borrowers could have taken such action on the relevant LCT Test Date in compliance with such ratio, basket, representation and warranty warranty, or “Default” or “Event of DefaultDefault “blocker” blocker, such ratio, basket, covenant, or representation and warranty or “Default” or “Event of DefaultDefault “blocker” blocker shall be deemed to have been complied with (and no Default or Event of Default shall be deemed to have arisen thereafter with respect to such Limited Condition Transaction from any such failure to comply with such ratio, basket or representation and warranty)with. For the avoidance of doubt, if the Borrower has Borrowers have made an LCT Election and any of the ratios, baskets, Default or Event of Default “blockers” or representations and warranties or “Default” or “Event of Default” blocker for which compliance was determined or tested as of the LCT Test Date would thereafter have failed to have been satisfied as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDA, Unrestricted Cash, Consolidated Total Funded Indebtedness or Consolidated Total Assets or otherwise, at or prior to the consummation of the relevant transaction or action, such baskets, ratios, ratios or representations and warranties or “Default” or “Event of Default” blocker will not be deemed to have failed to have been satisfied as a result of such fluctuationsfluctuations or otherwise. If the Borrower has Borrowers have made an LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio or basket on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement for such Limited Condition Transaction is terminated or expires, or the date for redemption, repurchase, defeasance, satisfaction and discharge or repayment specified in an irrevocable notice for such Limited Condition Transaction expires or passes, in each case without consummation of such Limited Condition Transaction, any such ratio (other than any the Financial Covenant under Section 6.08) or basket (x) shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated and (y) with respect to any Dividends and Restricted Debt Payments or Dividends only (and only until such time as the applicable Limited Condition Transaction has been consummated or the definitive documentation for such Limited Condition Transaction is terminated), also on a standalone basis without giving effect to such Limited Condition Transaction and the other transactions in connection therewith.
Appears in 1 contract